FLSA FAQs

What is the deadline date for the Pay Gap Assistance Agreement?

To receive Pay Gap Assistance, the form must be received by 12/20/2019.

Where does the Pay Gap Assistance Agreement need to be turned in?

The form may be scanned and emailed to payroll.services@nmsu.edu or hand delivered to the Aggie Service Center (ASC) in Milton Hall, Room 14. Forms received after the deadline date of 12/20/2019 will not be accepted.

Does the Pay Gap Assistance Agreement need to be filled out if I am not going to need the FLSA Annual Leave Buy Out or the  Pay Gap Loan?

While not required, we recommend that a form be completed even if you will not elect one of the options.

Will a confirmation be sent when a Pay Gap Assistance Agreement form is submitted?

Your email will serve as confirmation that the form was submitted. If the Pay Gap Assistance Agreement is submitted in paper, the Aggie Service Center (ASC) will provide a receipt.

When will the Pay Gap Assistance Agreement be paid?

If a form is submitted prior to the 12/20/2019 deadline date, the payment will be received on 1/15/20.

Can the Pay Gap Assistance Agreement be paid back earlier?

Contact the Aggie Service Center (ASC) to discuss specific arrangements.

If I choose to elect the FLSA Annual Leave Buy Out, will my leave be deducted at the time the form is processed or at the time of separation from NMSU?

If the FLSA Annual Leave Buy Out is elected, your leave will be deducted at the time the form is processed.

Can sick leave be cashed in instead of annual leave?

No.  Only the annual leave benefit provides an option for payout of hours upon employee separation (see ARP 8.41 and 8.43)  The FLSA pay gap option provides an ‘early’ payout of annual leave hours otherwise paid  upon termination (early benefit).

What deductions will be taken out of the 1/15 check? Loan: 

Any amount paid as a ‘loan’ will not be subject to any tax withholding or deductions.  This payment is not considered wages.

Leave Payout:  Payment for annual leave payout is considered wages and reported on the employee’s W-2.  This payment is subject to tax withholding and wage garnishment only.  No retirement, insurances, or other deductions come out of this payment.

What are the options to address the lag in pay?

Please know that we are aware of the hardship this is likely to cause. Going even a short amount of time without a paycheck can be incredibly difficult. Because of that, we are offering several options you may pursue:

  • A no-interest loan from NMSU in the amount of your normal net pay, which can be paid back over the next year through payroll deduction to be paid on Jan. 15, 2020;
  • Cashing out up to 80 hours of accrued annual leave, to be paid on Jan. 15, 2020;
  • A combination of these options: you may cash out some portion of your leave and receive a no-interest loan up to the amount of your net pay, which can be paid back through payroll deduction.

Additionally, another leave payout opportunity will be available as of April 30 for employees who currently have fewer than the necessary hours of accrued annual leave. For employees wishing to pursue any of these options, the Aggie Service Center will serve as a point of contact for assistance. They can be reached at 575-646-2000, asc@nmsu.edu, or by visiting Milton Hall, Room 14.

 

What are the changes to the Fair Labor Standards Act (FLSA)?

In September 2019, the U.S. Department of Labor (DOL) revised a regulation that increased the salary threshold where employees are eligible to receive overtime.  This was a major change to employee exemption criteria under the Fair Labor Standards Act (FLSA). The salary threshold, which has been in place since 2004, increased from $455 per week (the equivalent of $23,660 annually) to $684 per week (the equivalent of $35,568 annually). The threshold is only one element of the criteria used to determine exemption status.

When did the DOL last revise its overtime regulations for white collar workers?

The DOL last updated the white collar overtime regulations in 2004. That update, which included setting the standard salary threshold test amount of $455 per week, has been in effect since August 23, 2004.

When is NMSU required to implement the changes to the overtime rules?

The effective date of the final rule is January 1, 2020.

How are these overtime rule changes going to impact NMSU?

This change will pose unique challenges for colleges and universities because these institutions require a unique breadth of different types of positions not specifically defined in the framework of the FLSA and accompanying regulations.

Organizational and Cultural Challenges: Exempt employees that are converted to Non-Exempt will have to track work time. This may be perceived as a step back in your career growth. This change will, in no way, reflect adversely on the value of your work or the importance of your contributions to NMSU. The change of your position from exempt to nonexempt is necessary to comply with the Department of Labor regulations; and it provides you with wage and hour protection afforded by the legislation.

What is the difference between a non-exempt employee and an exempt employee?

Non-exempt employees are covered by the Fair Labor Standards Act and must receive overtime pay for hours worked in excess of 40 in a workweek at a rate not less than time and one-half their regular rates of pay.

Because of their duties, responsibilities, salary basis and salary level, exempt employees are not covered by the Fair Labor Standards Act and are not entitled to receive overtime pay for hours worked in excess of 40 in a workweek. “Exempt” is not a title, but a legal classification for compensation.

How do the new regulations affect someone in a position that is already non-exempt?

The new regulations do not affect positions that are already non-exempt in any way. All supervisors and employees should use this opportunity to familiarize themselves with current NMSU overtime regulations and procedures.

My annual salary is above $684 per week, so why did my position change from exempt to non-exempt?

Even though your salary is above the new minimum threshold, others with your same position classification title are not above the new threshold. While the Fair Labor Standards Act does not specifically state an employer cannot have both exempt and non-exempt employees in the same classification/job title. The salary of impacted exempt employees assigned to pay grades 06 and below will be converted to hourly pay, unless the position classification qualifies for an exemption under the law, as determined by HR Services.

Does this mean I have to submit a weekly time sheet documenting my hours worked and leave used?

Yes. Currently as an exempt employee you only document your leave usage by submitting the monthly Leave Report. Once you are changed to a non-exempt status you will record actual time worked on the standard time sheet twice a month. Non-exempt employees MUST submit a time sheet or the employee will not receive a paycheck for time worked. All hours must be reported during the pay period in which they are worked. Employees cannot “transfer” hours from one pay period to another.

Can I still work during the evening or on weekends?

Non-exempt employees must receive pay for all hours worked and must receive overtime pay for hours worked in excess of 40 in a workweek. Any work performed after normal working hours, including weekends, count towards your total hours worked. If the time worked after normal working hours accounts for more than 40 hours in that workweek, then you must be pre-approved, by your supervisor, to work those hours. Supervisors cannot allow employees to work more than 40 hours in one pay period and wait to report those hours in another pay period to avoid paying overtime.

What if I check my voicemails or emails after regular work hours?

Checking voicemails or emails after normal working hours is considered time worked and you must be compensated for all time worked. Therefore, you must get approval from your supervisor prior to performing work outside your normal hours.

Does overtime require preapproval?

Yes. Employees are required to obtain supervisor approval prior to working overtime. Departments are responsible and must budget for the cost of overtime.

What happens if I don’t have my overtime preapproved?

NMSU must pay an employee for all time worked and pay overtime pay for hours worked in excess of 40 in a workweek. However, working unauthorized overtime may subject the employee to disciplinary action.

Do holidays count as time worked?

Yes. Holidays recognized by NMSU are considered as time worked. Any hours worked in excess of 40 during a week with a holiday must be paid as overtime. In addition, if an employee is asked to work on a holiday, the employee would either submit the day as holiday worked and receive 2.5 times their rate of pay for the hours worked or the employee can be granted an alternative day off during that week and submit the alternate day as holiday instead. For example: The holiday is on Monday and the supervisor asks the employee to work a full shift on the holiday. If the employee also works Tuesday through Friday, the employee would enter Monday as holiday worked. However, if the employee was allowed to take Friday off as an alternative, the employee would enter regular time on Monday and holiday time on Friday but will not enter holiday worked time on any of those days.

Does annual and sick leave count as time worked?

No. NMSU must pay you overtime for any worked hours in excess of 40 during the work week in which annual or sick leave is used. Time worked for overtime purposes consists of any hours worked during the work  week less sick or annual leave, and any leave with pay (such as other leave taken for compassionate leave). The only exception is Jury duty. Jury duty must be reported as regular time with NMSU as it counts toward the overtime calculation for the work week.

Can I flex my time?

Yes. An employee may request and gain supervisor approval to change the daily or weekly schedule. However, the supervisor must give equal consideration to all similarly situated employees.

Am I required to take a lunch?

Yes. Employees who work six (6) to eight (8) hours or more in the workday should have a meal break of either one (1) hour or a (1/2) hour unpaid meal break. For more information on meal breaks and rest periods please refer to the AFSCME Agreement Article 28 “Hours of Work ”.

Are non-exempt employees entitled to breaks or rest periods?

Though the FLSA does not require employers to provide breaks or rest periods for employees, NMSU allows employees to take a 15-minute rest period during each 4-hour segment of the work period. Breaks may not be taken at the beginning or the end of the work period or appended to the meal break.

Can I work less time the following week if I work more than 40 hours in the preceding week?

No. NMSU defines the work week as 12:00 a.m. Sunday through 11:59 Saturday. Any amounts worked in excess of 40 during this time period must be paid according to the FLSA requirements. If you work 43 hours in the first week of the pay period you cannot adjust your work schedule to 37 hours the following week.

How did NMSU convert my yearly salary to an hourly rate?

The hourly rate of pay for full-time employees was converted using the following formula:

Full time annual salary effective 12/01/2019, divided by 24 (or 18 for 9-month staff), divided by 86.67. For example, a full-time employee with an annual salary of $40,000 would have a converted hourly rate of $19.23.

Do I have to make-up my time if I am come in late or leave early?

No. Non-exempt employees are paid for actual time worked. If you are 2 hours late for your normal work schedule start time, or leave early, you will need to take annual or sick leave depending on the circumstances of your late arrival or early departure.

Who is entitled to overtime pay under federal law?

Most employees covered by the Fair Labor Standards Act (“FLSA”) must be paid at least one and one-half times their regular rate of pay for any hours they work beyond 40 in a workweek. An employer who requires or permits an employee to work overtime is generally required to pay the employee premium pay for such overtime work.

For additional information see the U.S. DOL Fact Sheet#22: Hours Worked Under the Fair Labor Standards Act (FLSA) http://www.dol.gov/whd/regs/compliance/whdfs22.pdf

What is considered paid time?

Paid time is covered in U.S. Department of Labor Wage and Hour Division Fact Sheet #22: Hours Worked Under the Fair Labor Standards Act (FLSA) https://www.dol.gov/whd/regs/compliance/whdfs22.pdf

As a leader of a department, I have employees that are becoming non-exempt as a result of being below the new threshold. I really can’t afford the cost of paying overtime what should I do.

Although you can’t make the decision to not pay overtime for hours worked over 40, you do have other ways to address the situation. We suggest you look at work practices, schedules, and resource allocation to minimize the impact to additional overtime. We suggest you start thinking about this now and making plans before the changes go into effect in December.

As a Manager, what should I do to prepare for my employee becoming non-exempt?

You should be prepared to have an in-person discussion with each of your employees that will become non-exempt employees. You should attend the training that is offered to apprise you of the update.

As a Manager, what should I do if I know my employee is working unapproved overtime, for example, when I see emails sent after work hours?

NMSU is required to pay for all time worked for non-exempt employees. The supervisor should have a conversation with the non-exempt employee about working outside the normal work schedule without prior approval. If this repeatedly continues after having the discussion, then consult with HRS, Employee and Labor Relations.

How are part-time employees paid overtime?

Part-time employees are paid overtime for hours worked over 40 hour per work week.

I work part-time. Will my pay be calculated at 40 hours to determine if I am over the new threshold?

The actual weekly pay of $684 per week is used to determine whether an employee is over the threshold. In other words, the 40 hour equivalent salary is not used to make this determination.

Will I still receive the same amount per paycheck?

No, because pay period hours fluctuate. If you are converted to a non-exempt compensation system, you will be paid in accordance with the Regular & Term Appointment Nonexempt Staff, Temporary Exempt & Nonexempt Staff and Student (Semi-monthly/Lag Pay) Schedule. This schedule can be found at https://payroll.nmsu.edu/pay-schedules/. You may need to review the timing and amount of all automatic withdrawals from your bank account for items like a mortgage or car payment.

Will I need to make any changes to my direct deposit?

It is not necessary to make changes to your direct deposit. If you have automatic bill payments deducted from your account, you should make any necessary arrangements with your financial institution to accommodate the change in pay cycles.

Can I offer to work on my own time without any expectation of payment?

No. Non-exempt employees must be compensated for all hours actually worked.

Can an employee decide to waive payment of overtime?

No. The overtime requirement may not be waived under any circumstances due to federal regulations.

Do I have to notify my supervisor that I need to work overtime before I actually work it?

Yes. Employees must obtain the approval of their supervisor prior to working overtime.

My grant doesn’t allow for overtime. Do I still have to pay it?

Yes. NMSU is required to comply with the FLSA and must pay overtime regardless of the source of funding.

Can a supervisor make adjustments in the schedule before overtime occurs?

No, an employee’s daily or weekly schedule shall not be changed to avoid the payment of overtime or accrual of compensatory time without the employee’s consent.

Can a supervisor force the employee to take comp time in lieu of being paid overtime?

No. In order for an employee to receive comp time in lieu of overtime pay there must be written agreement, in advance, between the supervisor and employee. If the employee does not want comp time, then the employee must be paid overtime. Please refer to the AFSCME Agreement Article 28 “Hours of Work”

At what rate does an employee earn comp time?

Comp time is earned at a half-time rate. There are restrictions on earning and using comp time. Please refer to Administrative Rules and Procedures of New Mexico State University ARP 7.20 Staff Overtime Pay or Comp Time and AFSCME Agreement Article 28 Hours of Work.

For example, a nonexempt employee who has elected comp time works 45 hours in a work week. The nonexempt employee will be compensated for 45 hours at the regular hourly rate and bank 2 ½ hours of comp time.

What happens when I receive a salary increase that raises my salary above $35,568?

NMSU is implementing at the classification pay grade level. If there is a salary increase but no change in the classification pay grade, you will remain nonexempt.

Will this change affect my benefits?

No. Your eligibility for benefits is determined by factors other than pay.

Will benefit deductions change?

No. The amount you pay for your benefits will not change; however since you will now be paid on a lag, your benefit payments are also paid on the lag. This simply means that if you ever leave employment with NMSU, you will receive a paycheck after your last day of employment and benefits will be paid on that last paycheck as well; however benefits will end before that final check is issued. Please see 7.15 of the Administrative Rules and Procedures for details regarding benefit end dates.

Will Flexible Spending Accounts change?

No. The amount you pay for your benefits will not change; however since you will now be paid on a lag, your benefit payments are also paid on the lag. This simply means that if you ever leave employment with NMSU, you will receive a paycheck after your last day of employment and benefits will be paid on that last paycheck as well; however benefits will end before that final check is issued. Please see 8.14 – Flexible Spending Account of the Administrative Rules and Procedures for details regarding benefit end dates.

Will going to non-exempt affect my retirement account(s)?

No. Your eligibility for retirement will not change; however, your contributions are a percentage of your gross pay, so when your pay fluctuates, your contribution fluctuates as well. Questions about retirement should be directed to Benefit Services at benefits@nmsu.edu.

Will the change in pay frequency affect my sick and annual leave accruals?

No. There would only be an impact if nonexempt employees work less than full time, leave accruals will be prorated based on actual hours worked and any paid leave of absence.

Where can I find resources on the FLSA overtime rules, and NMSU Policies?

Administrative Rules and Procedures of NMSU – Rule 7.20 Staff Overtime Pay or Comp Time  https://arp.nmsu.edu/7-20/

Department of Labor – Final Rule: Overtime Update https://www.dol.gov/whd/overtime2019/index.htm

Department of Labor – U.S. Department of Labor Issues Final Overtime Rule https://www.dol.gov/newsroom/releases/whd/whd20190924

Department of Labor – Overtime Pay https://www.dol.gov/whd/overtime_pay.htm

Department of Labor – Fact Sheet: Final Rule to Update the Regulations Defining and Delimiting the Exemptions for Executive, Administrative, and Professional Employees https://www.dol.gov/whd/overtime2019/overtime_FS.htm

Department of Labor – Highlights of the Final Rule on Overtime Eligibility for White Collar Employees https://www.dol.gov/whd/overtime2019/overtime_FAQ.htm

Department of Labor – Fact Sheet #17S: Higher Education Institutions and Overtime Pay Under the Fair Labor Standards Act (FLSA) https://www.dol.gov/whd/overtime/whdfs17s.pdf