FLSA Training

1. FLSA Training Human Resources October 2012 Including How to Write an Effective Position Description

2. Introduction and Major Provisions The Fair Labor Standards Act (FLSA) was passed in 1938 • It set standards for child labor, • Minimum wage and overtime pay. • Recordkeeping Standards • Since the passage of the Equal Pay Act in 1963 as part of the FLSA, the Act also prohibits gender-based wage discrimination. • Sweeping changes were ushered in in 2004, and as a result many employees changed exemption status under the new regulations due to increases in salary thresholds and/or changes in the various duties tests applicable to administrative, executive, professional, and outside sales exemptions. • It is enforced by the Wage and Hour Division of the U.S. Department of Labor (DOL).

3. Minimum Wage • Covered, non-exempt employees must be paid not less than the federal minimum wage for all hours worked. • The minimum wage is $7.25 per hour effective July 24, 2009. • Georgetown’s Fair Wage rate for non-temporary employees working 30 hours a week or more is $12.00 per hour.

4. FLSA Best Practices, What you Need to Know as a Supervisor What can you do to avoid litigation? • Understand the exemptions • Review duties of the jobs in your department • The determinative factor will typically be the duties test (i.e., what is the employee actually doing?) Then, make sure that employee is actually doing those things. • Update position descriptions frequently. Always a good idea to review them annually at performance evaluation period. • Keep documentation on any changes to your positions. • A 2-year statute of limitations generally applies to the recovery of back pay. In the case of a willful violation of FLSA, a 3-year statute of limitations may apply • Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees who are employed in a bona fide: • Executive; • Administrative; • Professional; or • Outside Sales capacity

5. Hours Worked • Suffered or Permitted: (Work not requested but suffered or permitted is hours worked) It is the employer’s duty to see that work is not performed if the employer doesn’t want the work performed. The employer cannot sit back and accept the benefits without compensating employees for those benefits • Waiting Time: (Counted as hours worked when: Employee is unable to use the time effectively for his or her own purposes; and Time is controlled by the employer) (Not counted as hours worked when: Employee is completely relieved from duty; and time is long enough to enable the employee to use it effectively for his or her own purposes.) • On-Call Time: (On-call time is hours worked when: Employee has to stay on the employer’s premises; Employee has to stay so close to the employer’s premises that the employee cannot use that time effectively for his or her own purposes.) (On-call time is not hours worked when: Employee is required to carry a pager, Employee is required to leave work at home or with the employer where he or she can be reached.) • Meal and Rest Periods: ( Meal periods are not hours worked when the employee is relieved of duties for the purpose of eating a meal, rest periods of short duration (normally 5 to 20 minutes) are counted as hours worked and are compensable.) • On-Call Time • Meal and Rest Periods • Training Time • Travel Time • Sleep Time

6. Hours Worked Continued • Training Time: (Time employees spend in meetings, lectures, or training is considered hours worked and must be paid, unless: attendance is outside regular working hours, attendance is voluntary, the course, lecture, or meeting is not job related, the employee does not perform any productive work during attendance.) All training time is work time if it occurs during an employee regularly scheduled hours. • Travel Time: (Ordinary home to work travel is not work time, travel between job sites during the normal work day is work time, Special rules apply to travel away from the employee’s home area.) While away overnight on travel, a non-exempt employee will be compensated for all hours worked during the employee's regular working hours and in the regular workweek. (For example an employee boards a plane out of town at 8 am, their regular work start time. They attend a conference until 5:00, all hours up until 5:00 are compensable. After 5:00 the hours spent in the hotel and at the conference location are non- compensable hours.) • Sleep Time: (Less than 24 hour duty, employee who is on duty for less than 24 hours is considered to be working even if allowed to sleep or engage in other personal pursuits. Duty of 24 hours or more: parties can agree to exclude bona fide sleep and meal periods.

7. Salary Basis Test • To be salaried, one must regularly receives a predetermined amount of compensation each pay period (on a weekly or less frequent basis) • The compensation cannot be reduced because of variations in the quality or quantity of the work performed. • An employee is not paid on a salary basis if the employer makes deductions from the predetermined salary, for example, for absences caused by the employer or because of the operating requirements of the business. If the employee is ready, willing and able to work, deductions may not be made for time when work is not available. • Must be paid the full salary for any week in which the employee performs any work • Need not be paid for any workweek when no work is performed

8. Seven Permissible Deductions from the “no pay- docking” rule for Exempt Employees Seven exceptions from the “no pay-docking” rule: • Personal absence from work for one or more full days • Sickness or disability absence from work for one or more full days • Jury Fee, Witness Fee or Military pay offsets • Penalties for violating safety rules of “major significance” • Unpaid disciplinary suspension for violations of workplace conduct rules • Proportionate part of full salary for time actually worked in the first and last weeks of employment • Unpaid leave under the Family and Medical Leave Act • Improper deductions from salaried employees can result in the loss of the exemption with overtime hours then due for any week the employee worked over 40 hours.

9. Overtime Pay • Covered, non-exempt employees must receive one and one-half times the regular rate of pay for all hours worked over forty in a workweek. • Workweek is 7 consecutive 24 hour periods (168 hours) • Regular Rate is determined by dividing total earnings in the workweek by the total number of hours worked in the workweek. • The Regular Rate may not be less than the applicable minimum wage. • Bonuses: If an employee is paid an hourly rate and a bonus, the earnings from both the hourly rate and the bonus are added together when determining the total straight time earnings. This amount is then divided by total hours worked to get the regular rate of pay for overtime purposes. • One-half of this new rate is the premium amount due for each overtime hour.

10. Example Fixed Salary for Fluctuating Hours Worked Fixed Salary $420.00 (for all hours worked) Week 1 Hours Worked 49 Regular Rate $8.57 ($420 / 49 hours) Additional Half-Time Rate $4.29 Salary Equals = $420.00 9 hours x $4.29 = $38.61 (Overtime Due) Total Due = $458.61

11. Example Fixed Salary for Fluctuating Hours Worked Fixed Salary $420.00 (for all hours worked) Week 2 Hours Worked 41 Regular Rate $10.24 ($420 / 41 hours) Additional Half-Time Rate $5.12 Salary Equals = $420.00 1 hour x $5.12 = $5.12 Total Due = $425.12

12. What the FLSA Does Not Require The FLSA is enforced by the Wage and Hour Division of the U.S. Department of Labor (DOL). Although FLSA applies in all states, it permits states to regulate areas not covered by FLSA and to afford workers greater protections. Where state law and FLSA conflict, employers must follow the provision that is more favorable to the employee. • Vacation, holiday, severance or sick pay. • Meal or rest periods, holidays off or vacations. • Premium pay for weekend or holiday work. • A discharge notice, reason for discharge, or immediate payment of final wages to terminated employees. • Any limit on the number of hours in a day or days in a week an employee at least 16 years old may be scheduled to work. • Pay raises or fringe benefits.

13. All Employees are considered non-Exempt and Exemptions • All employees are considered non-exempt unless the employer establishes that the employee’s position meets specific exemption criteria. • Accordingly, the definition of a non-exempt employee is an employee who does not meet any one of the Fair Labor Standards Act’s exemption tests and is paid on an hourly basis and covered by wage and hour laws regarding minimum wage, overtime pay, and hours worked. • Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees who are employed in a bona fide: • Executive; • Administrative; • Professional; or • Outside Sales capacity • Certain computer employees may be exempt professionals under Section 13(a)(1) or exempt under Section 13(a)(17) of the FLSA. (Computer programmers, systems analysts, and similar professionals are considered exempt if they earn an hourly rate of $27.63 or more.)

14. Three Part Test for the Exemption • Salary Level: The employee must be paid at least the regulatory minimum salary. • Salary Basis: The employee must be paid on a salary-rather than an hourly-basis, and the employer must make no deductions from that individual's pay that are not consistent with being paid a salary. • Job Duties: The employee's primary duties must be "exempt" in nature.

15. But How Come my Employee isn’t Exempt?? • Employees must meet certain requirements under federal and state law to be classified as exempt. In order to be exempt, the job must require exercising discretion and making independent judgments that have significant impact on business operations. The employee is not merely applying guidelines to decision-making; but is free to act outside of guidelines. The requirement to make these independent judgments should be one of the employee’s most significant job duties, not something he or she occasionally does. All employees are expected to behave in a “professional” manner, but the work they perform does not necessarily qualify them to be classified as exempt. Many highly skilled, very responsible positions are classified as non-exempt. • All Georgetown employees do important work. The value of that work has no bearing on the legal definitions which allow certain positions to be classified as exempt. • How important the decision is, how much the manager/supervisor relies on that employee to make the decision, or how much the supervisor, department or Georgetown values the decisions made by the employee are not part of the governmental criteria which would allow the position to have exempt status. Decisions need to be of a very particular type, such as the authority to hire, fire, administer discipline, conduct performance reviews and recommend merit increases. • My employee completes both exempt and non exempt work- The position must require spending at least 51% of the time in a week actually performing bona fide exempt work or the position must be classified as non-exempt. For example, if the job requires the employee to spend 40% of the time supervising others and 60% doing the same work as non-exempt subordinates, the job is non-exempt. If the position requires performing a variety of tasks and the time spent on exempt and non-exempt duties varies widely, the decision will always be in favor of making the position non-exempt.

16. How Can I Tell the Difference? • Does the job require a “rule follower”, or a “rule maker”? If the employee usually follows procedures and policies instead of having the authority to create new rules and policies or, to make exceptions to policy, the job is probably non-exempt. • Does the job require hands on work most of the time? If the employee spends most of the time operating equipment of any kind (including computers) instead of spending most of the time planning, directing or being genuinely innovative (and use of equipment is secondary to his or her job) the position is likely non-exempt. • Is the work complex technical work? If the job requires spending most of the time applying craft and technical skills, the job is probably non-exempt, even if those skills are very complex or highly technical. Some examples of highly technical non-exempt positions are videotape editors, computer programmers, accountants, lab assistants, graphic designers, and system analysts. There are special requirements for classifying computer positions as exempt. • Does the position require spending most of the time supervising others? If the job requires the supervisor to spend 51% or more time doing the same work as non-exempt subordinates, the job is probably non-exempt. The number of employees supervised does not automatically qualify a position for exempt status—it depends on the duties and responsibilities of the job. Examples of Duties in Higher Education that Are Non-Exempt • Advising/counseling students within established guidelines regarding financial aid, admission and other academic issues • Implementing, monitoring, and giving updates on projects • Writing correspondence, news articles, speeches, reports or proposals • Performing experiments and recording results according to established protocols • Designing Web pages to meet user needs • Evaluating the need for equipment upgrades and selecting new equipment

17. Difficult Duties to Distinguish Between The following are a few examples of responsibilities that are appropriately assigned to non-exempt positions, which supervisors mistakenly believe might qualify the position to be exempt. • Programming within existing programs (e.g., VBA, Flash, ASP, .Net, etc.) • Coordinating or managing office operations without significant supervisory responsibilities • Tracking, analyzing, auditing and reconciling financial performance within established parameters • Designing publications, both printed and online, to specifications • Performing administrative and clerical duties, such as bookkeeping, billing, filing, typing, and operating business machines, sorting and distributing mail, making travel arrangements • Coordinating events • Selecting vendors and monitoring their performance and products • Advising employees regarding compliance with policies and procedures • Determining if a research subject is eligible for a program, experiment etc. • Making admission decisions for undergraduate and/or graduate programs in accordance with admission guidelines • Administering an assigned budget and providing input for future budget requests • Installing upgrades, repairing, and maintaining computer systems and work stations and Setting up, assembling, and installing IT equipment and troubleshooting issues

18. Salary Tests • Employees who are paid less than $23,600 per year ($455 per week) are nonexempt. Must meet the minimum salary without prorating. • (Employees who earn more than $100,000 per year are almost certainly exempt if they are performing at least one exempt duty.) • The highly compensated test is not available for: Non-management production line workers; Non-management employees in maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers; Other employees who perform work involving repetitive operations with their hands, physical skill and energy would all be non exempt. • Biweekly: $910 • Semimonthly: $985.83 • Monthly: $1,971.66

19. Executive Exemption Job duties are exempt executive job duties if the employee: • Regularly supervises two or more other employees. • Has management as the primary duty of the position. • Has genuine input into the job status of other employees (such as hiring, firing, promotions, or assignments). • Supervision means what it implies. The supervision must be a regular part of the employee's job, and must be of other employees. Supervision of non-employees does not meet the standard. The "two employees" requirement may be met by supervising two full-time employees or the equivalent number of part-time employees. (Two half-time employees equal one full-time employee.) • "Mere supervision" is not sufficient. In addition, the supervisory employee must have "management" as the "primary duty" of the job. The FLSA Regulations contain a list of typical management duties. • Responsible for interviewing, selecting, and training employees. • Setting rates of pay and hours of work. • Maintaining production or sales records (beyond clerical).

20. Executive Exemption Cont. • Appraising productivity; handling employee grievances or complaints, or disciplining employees. • Determining work techniques. • The final requirement for the executive exemption is that the employee have genuine input into personnel matters. This does not require that the employee be the final decision maker on such matters, but rather that the employee's input is given "particular weight." Usually, it will mean that making personnel recommendations is part of the employee's normal job duties, that the employee makes these kinds of recommendations frequently enough to be a "real" part of the job, and that higher management takes the employee's personnel suggestions or recommendations seriously. • Planning the work. • Apportioning work among employees. • Determining the types of equipment to be used in performing work, or materials needed. • Planning/creating budgets for work • Monitoring work for legal or regulatory compliance. • Providing for safety and security of the workplace.

21. FLSA Terms to Consider • Customarily and Regularly is a frequency that must be greater than occasional but which, of course, may be less than constant • Includes work normally and recurrently performed every workweek • Does not include isolated or one-time tasks • Particular Weight: factors include, but are not limited to: • Whether it is part of the employee’s job duties to make suggestions and recommendations • The frequency with which suggestions and recommendations are made or requested • The frequency with which the employee’s suggestions and recommendations are relied upon • Concurrent performance of exempt and nonexempt work does not automatically disqualify an employee from exemption • Exempt executives generally decide when to perform nonexempt duties and remain responsible for the success or failure of business operations • Nonexempt employees generally are directed by a supervisor to perform the exempt work or perform the exempt work for defined time periods

22. Learned Professional Exemption • The job duties of the traditional "learned professions" are exempt. These include lawyers, doctors, dentists, teachers, architects, pharmacists, accountants, actuaries, chefs, certified athletic trainers, biologists, chemist, physical scientists and clergy. Also included are registered nurses (but not LPNs), accountants (but not bookkeepers), engineers (who have engineering degrees or the equivalent and perform work usually performed by licensed professional engineers), actuaries, scientists (but not technicians), pharmacists, and other employees who perform work requiring "advanced knowledge" similar to that historically associated with the traditional learned professions. • Professionally exempt work means work which is predominantly intellectual, requires specialized education, and involves the exercise of discretion and judgment; and work requiring invention, imagination, originality or talent in a recognized field artistic or creative endeavor. Professionally exempt workers must have education beyond high school, and usually beyond college, in fields that are distinguished from (more "academic" than) the mechanical arts or skilled trades. Advanced degrees are the most common measure of this, but are not absolutely necessary if an employee has attained a similar level of advanced education through other means (and perform essentially the same kind of work as similar employees who do have advanced degrees). • Some employees may also perform "creative professional" job duties which are exempt. This classification applies to jobs such as actors, musicians, composers, writers, cartoonists, and some journalists. It is meant to cover employees in these kinds of jobs whose work requires invention, imagination, originality or talent; who contribute a unique interpretation or analysis. • Identifying most professionally exempt employees is usually pretty straightforward and uncontroversial, but not always the case. Whether a journalist is professionally exempt, for example, or a commercial artist, will likely require careful analysis of just what the employee actually does. • Traditional Non-exempt Professionals include: Licensed practical nurses, accounting clerks who perform a great deal of routing work, cooks, paralegals and legal assistants.

23. Learned Professional Exemption Cont. • Predominantly intellectual in character • Includes work requiring the consistent exercise of discretion and judgment • The advanced knowledge is generally used to analyze, interpret or make deductions from varying facts or circumstances • Notwork involving routine mental, manual, mechanical, or physical work • Cannotbe attained at the high school level • Specialized academic training is a prerequisite for entering the profession Best evidence that an employee meets this requirement is possession of the appropriate academic degree • The learned professional exemption is not available for occupations that may be performed with: • The general knowledge acquired by an academic degree in any field • Knowledge acquired through an apprenticeship • Training in the performance of routine mental, manual, mechanical or physical processes • The exemption also does notapply to occupations in which most employees acquire skill by experience.

24. Learned Professional Exemption Cont • The learned professional exemption applies to any employee who holds a valid license or certificate permitting the practice of medicine Learned Professional Exemption • Osteopathic physicians -Law -Pharmacy • Podiatrists -Accounting -Theology • Dentists -Architecture -Physical/Biological/Chemical Sciences • Optometrists -Engineering -Actuarial Computations • The exemption is also available to an employee who holds the requisite academic degree for the general practice of medicine and is engaged in an internship or resident program • Registered nurses who are registered by the appropriate State examining board generally meet the duties requirements for the learned professional exemption • Many registered nurses, however, are paid by the hour, not on a salary basis, and thus are entitled to overtime pay • Licensed practical nurses generally do notqualify as exempt learned professionals. • Financial Services positions may be exempt if the work includes collecting and analyzing financial data including assets, investments, debts or liabilities, advising clients on the advantages or disadvantages of financial products. • Accounting clerks, junior accountants, and other accountants who perform a great deal of routine work that is not an essential part of, and not necessarily incidental to, any professional work that they may do are not exempt

25. Learned Professionals in Higher Education Coaches • Faculty engaged as teachers are generally exempt • Non-faculty member bona fide executive employee Athletic Trainers • Completed 4 academic years of pre-professional and professional study • Curriculum accredited by Commission on Accreditation of Allied Health Education Programs • Certified by Board of Certification of National Athletic Trainers Association Assistant Athletic Trainer • 1998 DOL Opinion Letter: Non-exempt

26. Exempt Graduate Assistants Graduate Teaching Assistants • Assigned class or laboratory section for purpose of instruction • Should still qualify for exemption Graduate Academic Assistant • Not in charge of class or lab • Answers students’ questions and assists them • May also qualify for exemption as a teacher Graduate Research Assistant • Academic relationship, not a employer-employee relationship

27. Positions that Do Not Meet the Learned Professional Exemptions • Accounting clerks and bookkeepers who normally perform a great deal of routine work • Cooks who perform predominantly routine mental, manual, mechanical or physical work • Paralegals and legal assistants • Engineering technicians The key to determining which jobs meet the Learned Professional exemption is to look to the specific educational requirement. Keep in mind that it must be both "prolonged" and "specialized." For example: most paralegals have a college degree, but not specialized. Most paralegals also have some specialized certificate, but the training to receive it is not prolonged, hence paralegals do not satisfy the professional exemption. The same is true of many human resource professionals. Being a professional in the business sense does not automatically translate into being a "professional" in the legal sense. Unfortunately, the regulations do not provide substantial guidance on what constitutes a "prolonged course" relative to specialized intellectual instruction. As a practical matter, anything less than a four-year specialized program is at risk. However, just because these professionals don't fall within the "professional" exemption does not mean that they are nonexempt. Depending on their job responsibilities, HR professionals may fall within the administrative or executive exemption. Others, for example, recruiters who screen applications for predetermined requirements, or benefits coordinators who generally collect, submit and file data, are generally considered non-exempt. Most paralegals will not fall within the administrative exemption because they will not have the requisite discretion and independent judgment.

28. Exempt Administrative Duties • The most elusive and imprecise of the definitions of exempt job duties is for exempt "administrative" job duties. • The Regulatory definition provides that exempt administrative job duties are: • (a) office or non-manual work, which is(b) directly related to management or general business operations of the employer or the employer's customers, and (c) a primary component of which involves the exercise of independent judgment and discretion about (d) matters of significance. • The administrative exemption is designed for relatively high-level employees whose main job is to "keep the business running." A useful rule of thumb is to distinguish administrative employees from "operational" or "production" employees. Administrative employees provide "support" to the operational or production employees. They are "staff" rather than "line" employees. Examples of administrative functions include labor relations and personnel (human resources employees), payroll and finance (including budgeting and benefits management), records maintenance, accounting and tax, marketing and advertising (as differentiated from direct sales), quality control, public relations (including shareholder or investment relations, and government relations), legal and regulatory compliance, and some computer-related jobs (such as network, internet and database administration.

29. Independent Judgment • The comparison and evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered • Must be exercised with respect to “matters of significance,” which refers to the level of importance or consequence of the work performed • Decisions and recommendations may be reviewed at a higher level and, upon occasion, revised or reversed • Exercising “discretion and independent judgment” involves an employee comparing and evaluating possible courses of conduct, and acting or making a decision after the various possibilities have been considered. The term “matters of significance” refers to the level of importance or consequence of the work performed. In determining whether or not an employee exercises discretion and independent judgment, all the facts involved in the particular employment situation must be considered. The term implies that the employee has authority to make an independent choice, free from immediate direction or supervision. However, employees can exercise discretion and independent judgment even if their decisions or recommendations are reviewed, and occasionally reversed, at a higher level. An employee may make recommendations for action rather than actually taking action and still qualify as exercising discretion and independent judgment.

30. Independent Judgment Continued Consider whether an employee: • Formulates or implements policies or operations • Conducts major assignments • Performs work that affects departmental operations • Has authority to commit the University or department • Has authority to waive or deviate from established practices • Has authority to negotiate and bind the University • Provides expert advice to management • Is involved in planning long- or short-term departmental objectives • Investigates and resolves matters of significance • Handling complaints, arbitrating disputes or resolves grievances

31. Exempt Administrative Duties Cont. • To be exempt under the administrative exemption, the "staff" or "support" work must be office or non-manual, and must be for matters of significance. Clerical employees perform office or non-manual support work but are not administratively exempt. Nor is administrative work exempt just because it is financially important, in the sense that the employer would experience financial losses if the employee fails to perform competently. Administratively exempt work typically involves the exercise of discretion and judgment, with the authority to make independent decisions on matters which affect the business as a whole or a significant part of it. • Questions to ask include whether the employee has the authority to formulate or interpret company policies; how major the employee's assignments are in relation to the overall business operations of the department (buying paper clips versus buying a fleet of delivery vehicles, for example); whether the employee has the authority to commit the employer in matters which have significant financial impact; whether the employee has the authority to deviate from company policy without prior approval. • An example of administratively exempt work could be the buyer for a department store. Performs office or non-manual work and is not engaged in production or sales. The job involves work which is necessary to the overall operation of the store -- selecting merchandize to be ordered as inventory. The work is important since having the right inventory is crucial to the well-being of the store's business. Involves the exercise of a good deal of important judgment and discretion, since it is up to the buyer to select items which will sell in quantity and at sufficient margins to be profitable.

32. Exempt Administrative Duties Cont • Clerical work may be administrative, but it is not exempt. Most administrative assistants, for example, may accurately be performing administrative work, but their jobs are not usually exempt. Similarly, filing, filling out forms, entering data into a database or system and preparing routine reports, answering telephones, making travel arrangements, working on customer "help desks," and similar jobs are not likely to be high-level enough to be administratively exempt. Many clerical workers do in fact exercise some discretion and judgment in their jobs. However, to "count" the exercise of judgment and discretion must be about matters of considerable importance to the operation of the enterprise as a whole. • Routinely ordering supplies (and selecting which vendor to buy supplies from) is not likely to be considered high- enough to qualify the employee for administratively exempt status. Some administrative assistants may indeed be high-level, administratively exempt employees (for example, the Administrative Assistant or Executive Assistant to the CEO/Dean/Provost who really does "run his/her life"), while some employees with lofty titles (e.g., "administrative assistant") may really be performing nonexempt clerical duties.

33. Manuals • Exempt employees may use manuals, guidelines or other established procedures if they: • contain or relate to highly technical, scientific, legal, financial or other similarly complex matters • that can be understood or interpreted only by those with advanced or specialized knowledge or skills • Employees are not exempt if they use manuals to apply well-established techniques or procedures within closely prescribed limits, or other sources within closely prescribed limits to determine the correct response to an inquiry, problem or set of circumstances

34. Typical Administrative Management Duties • Tax • Finance • Accounting • Planning and Controlling Budgets, Budgeting • Auditing • Insurance • Quality Control • Purchasing • Procurement • Advertising • Marketing • Research • Safety and Health • Human Resources • Employee Benefits • Labor Relations • Public and Government Relations • Legal and Regulatory Compliance • Computer Network, Internet and Database Administration

35. Discretion and Independent Judgment • The comparison and evaluation of possible courses of action or making a decision after the various possibilities have been considered • Must be exercised with respect to “matters of significance,” which refers to the level of importance or consequence of the work performed • Decisions and recommendations may be reviewed at a higher level and, upon occasion, revised or reversed • Factors included: • Whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices • Whether the employee carries out major assignments in conducting the operations of the business • Whether the employee performs work that affects business operations to a substantial degree, even if employee’s assignments are related to operation of a particular segment of the business • Factors included: • Whether the employee has authority to commit the employer in matters that have significant financial impact • Whether the employee has authority to waive or deviate from established policies and procedures without prior approval • Whether the employee has authority to negotiate and bind the University/Department on significant matters • Whether the employee provides consultation or expert advice to management • Factors included: • Whether the employee is involved in planning long- or short-term business objectives • Whether the employee investigates and resolves matters of significance on behalf of University/department • Whether the employee represents the University in handling complaints, arbitrating disputes or resolving grievances.

36. Discretion and Independent Judgment • Discretion and independent judgment does notinclude: • Applying well-established techniques, procedures or specific standards described in manuals or other sources • Clerical or administrative work • Recording or tabulating data • Performing mechanical, repetitive, recurrent or routine work Use of Manuals • Exempt employees may use manuals, guidelines or other established procedures if they: • contain or relate to highly technical, scientific, legal, financial or other similarly complex matters • that can be understood or interpreted only by those with advanced or specialized knowledge or skills • Employees are not exempt if they use manuals to apply well-established techniques or procedures within closely prescribed limits Financial Services • May be exempt if duties include: • Collecting and analyzing information regarding investments , budgets, income or debts • Determining which financial products best meet needs given the financial circumstances • Recommending the advantages and disadvantages of different financial products • Marketing, servicing or promoting the employer’s financial products

37. Discretion and Independent Judgment An employee whose primary duty is selling financial products does not qualify for the administrative exemption • Human resource managers who formulate, interpret or implement employment policies generally meet the administrative duties requirements • Human Resources clerks who “screen” applicants to obtain data regarding minimum qualifications and fitness for employment generally are not exempt administrative employees • An employee who leads a team of other employees assigned to complete major projects will be exempt. • Executive assistant or administrative assistant to a business owner or senior executive of a large business who has delegated authority regarding matters of significance will be exempt • Management consultants who study the operations of a business and propose changes in the organization will be exempt

38. Admissions Recruiters/Enrollment Counselors • Admissions Recruiters are generally not exempt under the academic administrative exemption. 29 U.S.C. § 541.204. The Preamble to the new regulations explains that the DOL Opinion Letters issued February 19, 1998 and April 20, 1999 under the current regulations elaborate on the condition that the academic administrative exemption is limited to employees engaged in work relating to the academic operations and functions of a school, rather than work relating to the general business operations of the school. Thus, Enrollment Counselors who engage in general outreach and recruitment efforts to encourage students to apply to the school do not qualify for the academic administrative exemption because their work is not sufficiently related to the school’s academic operations. The April 20, 1999 Opinion Letter noted that, depending upon the employee’s duties, they might qualify for the general administrative exemption because their work related to the school’s general business operations and involved work in the nature of general “sales” promotion. The Preamble states specifically that, consistent with DoL Opinion Letters issued under the current regulations, Admissions Counselors were not included as an example of an exempt academic administrative employee.

39. Academic Administrative Duties • The primaryduty is the performance of office or non-manual work directly related to academic instruction or training in an educational institution • Examples that do qualify: • College/University Administrators involved with faculty and curriculum • Department Administrators • Lab Administrators • Academic Counselors – advising students on academics, administering testing • Department heads responsible for the various subject matter departments; • Academic Counselors • Assistants responsible for administration of curriculum, quality and methods of instructing, measuring and testing the learning potential and achievement of students, establishing and maintaining academic and grading standards, and other aspects of a teaching program.

40. Academic Positions that do not meet the exemption • Social Workers • Psychologists • Food Service Managers • Dieticians • Enrollment/Admissions Counselors (Enrollment Counselors who engage in general outreach and recruitment efforts to encourage students to apply to the school do not qualify for the academic administrative exemption because their work is not sufficiently related to the school’s academic operations.) • DOL Opinion Letter noted that, depending upon the employee’s duties, they might qualify for the general administrative exemption because their work related to the school’s general business operations and involved work in the nature of general “sales” promotion. The Preamble states specifically that, consistent with DOL Opinion Letters issued under the former regulations, Enrollment/Admissions Counselors were not included as an example of an exempt academic administrative employee. • Recruiters

41. Creative Professionals • The primaryduty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor. • The recognized fields of artistic or creative endeavor include music, writing, acting and the graphic arts. Thus, the requirements are generally met by actors, musicians, composers, conductors, soloists, certain painters, writers, cartoonists, essayists, novelists, photographers and others as set forth in the regulations. • Journalists do not meet the educational requirements for the learned professional exemption. However, journalists, reporters and other employees of newspapers, magazines, television and other media may satisfy the duties requirements for the creative professional exemption if their primary duty is work requiring invention, imagination, originality or talent. • Graphic Artist performing work that is original and creative, could qualify for the professional exemption, while a Graphic Arts Technician who engages in the drawing or reproduction from flat illustration, operating an offset duplicating machine to reproduce copies and who performs otherwise technical duties generally would not meet the conditions for exemption, notwithstanding that this technician may well possess the training for original artistic production.

42. Computer Employee Exemption To qualify for the computer employee exemption, the following tests must be met: • The employee must be compensated on a salary not less than $455 per week or, if compensated on an hourly basis, at a rate not less than $27.63 an hour; The employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the duties described below; The employee’s primary duty must consist of: 1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications; 2) The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; 3) The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or 4) A combination of the aforementioned duties, the performance of which requires the same level of skill. 5) An employee in UIS might also meet the Administrative exemption depending on the nature and duties of their position, particularly if there is extensive project management responsibilities, so careful examination of both exemptions might be prudent.

43. Computer Exemption Continued • Employees whose work is highly dependent upon, or facilitate by, the use of computers and computer software programs (e.g., webmasters, engineers, drafters and other skilled computer-aided design software), but who are not primarily engaged in computer systems analysis and programming or other similarly skilled computer-related occupations identified in the primary duties test are also not exempt under the computer employee exemption. • Hardware repair and extensive use of computers and software are not considered exempt activities. • Help Desk employees are typically non-exempt.

44. Youth Employment • Sixteen and seventeen year olds may be employed for unlimited hours in any occupation other than those declared hazardous by the Secretary of Labor. • Fourteen and fifteen year olds may be employed outside of school hours in a variety of non-manufacturing and non-hazardous jobs for limited periods of time and under specified conditions. They can not work more than 3 hours on a school day, or 18 hours in a week that school is in session. More than 8 hours in a day that school is not in session and no more than 40 hours in a week when school is not in session. Or before 7 a.m. or after 7 p.m. on any day, except from June 1st through Labor Day, when nighttime work hours are extended to 9 p.m. • Children under fourteen years of age may not be employed in non-agricultural occupations covered by the FLSA.

45. Writing a Good, Accurate and Compliant Position Description Accurate position descriptions are the blueprints of a job, clearly define the role, set the expectations and describe the qualifications necessary to successfully perform the job. They also provide the basis for job evaluation, wage and salary surveys, and help form the foundation for an equitable wage and salary structure. They also provide a basis from which to determine whether a disabled applicant is otherwise qualified for the job and, if so, what accommodation should be made to let the applicant perform the essential functions of the position. A position description is not a procedure manual.  If you start enumerating tasks, you have taken it one step too far.  Too many details render it harder to identify important information and more difficult for the job description to remain current .   Too many details leads to the trap of too narrowly defining positions, rather than jobs, and ultimately creating a huge administrative burden of maintaining unnecessary descriptions and rendering the attitude “that’s not my job.” Well drafted position descriptions make it possible to identify common job elements and requirements, which in turn helps clarify which jobs really are similar and which jobs warrant different pay levels because they require different levels of skill, knowledge and responsibility, or because they contribute to the University goals in differing ways. Legal issues certainly arise here ( ensuring employees performing jobs with similar skills, effort and responsibility) are compensated equitably, so inflating position descriptions is a dangerous practice. • Accurate position descriptions provide a basis for clarity regarding recruitment, work planning, competency development,classification determination and placement, performance evaluation, and compensation. • Help clarify and align with the University’s mission & values. Establish performance requirements. Determine classification and benchmark to the external job market. Explore reasonable accommodations. Comply with legal requirements related to equal opportunity, equal pay, overtime eligibility.

46. Reasons for Accurate and Current Position Descriptions • Position descriptions have the potential to become the subject of contention, including grievances and/or litigation. Therefore it is important they accuracy be maintained. Some jobs are dynamic, changing rapidly and extensively (due to technological or organizational considerations); these positions should be reviewed often. • Always, Always, Always focus on the work not the person! Many times supervisors start out writing a position description to attain a certain grade, FLSA status or salary, each of which is WRONG. • After evaluation, a position description will be placed into a Job Profile, if one does not exist, please contact me to create a new one. Very critical to not place dissimilar positions in the same Job Profile. • Signatures on the Position Description form documented agreements between the employee and the supervisor that the information is an accurate and up-to-date accounting of the duties, effort, and qualifications related to the position. In addition, the supervisor can include supplemental information, or clarification, related to the description in order to provide clarification and context. • Do not include future responsibilities; the general rule is that a function must have been performed for a period of 3 months before being included in a job description.

47. Questions to ask as you draft a position description • What is the required output level for the job? • What are the expected results? • What is the relationship between each task? If there is a task sequence or a task hierarchy, document this order. • What are the necessary physical and mental requirements needed to accomplish the job? • Is specific training necessary? Document what required experience, certificates, and education are necessary. • What are the safety and quality control measures in place?  Document potential workplace hazards and the measures taken to eliminate them.  • What happens if a task is not performed appropriately? • What level of responsibility is necessary? • What happens if the end result is not achieved? • Are there specified time frames for completing a task? • Does the job necessitate completing tasks in multiple, alternate, or off-site locations? • What conditions are required for task completion? Conditions include environmental (hot/cold, inside/outside, noise level, lighting, ventilation, etc.) and social (works with the public, works under deadlines, works alone, etc.). • Is the job accessible (parking, entrances and exits, doors)? • Is supervision a key aspect of the position? • What is the financial role this position will play and what dollars will the role have impact over?

48. Job Analysis (Desk Audit) • A job analysis is an exercise designed to systematically obtain, categorize, and document all relevant information about a job. • Typically done in the department with the goal of deterring: • What systems, programs software, hardware, and equipment the role will utilize • Types of communication common for the role; exchanging information, interpreting information, conveying difficult information, presenting information to groups. • The job’s relative importance in comparison with other jobs in the department • How much time is spent on each task. • Problems encountered, easily solved, require research and interpretation of policy. • Typical mental processing required, types of decisions made, reasoning required • What happens if goals and objectives are not met? What are the repercussions of poor performance. • Knowledge of the concepts, principles, theories, and methods applicable to planning, and designing required for the position to be completed successfully.

49. Aspects of Georgetown’s Position Descriptions • Position Summary:The job summary is brief narrative paragraph that gives a basic overview of the job. It broadly describes the scope and key duties of the job and may state the purpose of the job. The summary should be a brief description of the general nature and purpose of the job and should remain consistent with the rest of the job description. The job summary should provide enough information to differentiate the major function and activities of the job from those of other jobs. • Organizational Characteristics: It is important to describe the nature of the role and how the role fits into the department or organizational unit. An organization chart is always advisable so a visual description of the department is understood. • Principal Accountabilities:This is one of the most important sections of a job description. It is a listing of the major duties assigned to the job. This section can play an important roll in helping ensure compliance with the Americans With Disabilities Act (ADA) and determining FLSA status and position classification. Not every job duty that will be performed by the incumbent needs to be listed in this section. You should focus on the required outcome of the job’s tasks, rather than on the tasks themselves.

50. Georgetown University Position Description Cont. Dimensions • Supervision: List the number of people supervised, including students, and reference if the supervision is direct, supervises daily work, or indirect where supervision is a team or departmental shared task. Consider how much time the position spends supervising others. • Leadership:Select the level most often, routinely encountered on the job, not the one that occasionally, or periodically applies. • Complexity of Work: Please ensure that this is properly reflected. Very complex is selected if the work involves complicated bodies of knowledge and functions that differ substantially from each other, and require regular integration for the job to be completed successfully. Normally a VP or top departmental administrator role will have this level selected. • Freedom of Action: This describes the freedom the position has to make decisions and take conclusive action. The nature and frequency of contact with the immediate supervisor, as well as the level and extent that work instructions, precedence, procedures, policy or guidelines are provided is factored in here. Think of the mental processes, reasoning, planning, decision making that are inherent in the job