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HomeMy WebLinkAboutAgenda - 01-15-2008-4rORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: January 15, 2008 Action Agenda Item No. ~-- - f SUBJECT: Amendments and Revision of the Orange County Personnel Ordinance: Article I, Section 6.0 and 7.0, and Article III, Section 3.0 DEPARTMENT: Personnel PUBLIC HEARING: (Y/N) No ATTACHMENT(S): (1) Revised Article 1, Section 6.0 and 7.0 (2) Current Article III, Section 3.0 (3) Administrative Rules and Regulations INFORMATION CONTACT: Annette Moore, Policy and Compliance Officer, 919-245-2317 Michael McGinnis, Human Resource Director (919) 245-2552 PURPOSE: To adopt an amendment to Article I, Sections 6.0 and 7.0; revise Article III, Section 3.0 and repeal the current Article III, Section 3.0; and to review the Administrative Rules and Regulations for Overtime Compensation. BACKGROUND: The Board requested that Staff review the Overtime Compensation section of the Orange County Personnel Ordinance to ensure that the County was complying with federal and state laws regarding overtime compensation. A review was conducted of both the Personnel Ordinance and how the County was complying with the provisions of the Ordinance. Staff met with several large departments and departments that use overtime compensation on a regular basis. The feedback from those meetings showed that the language in the Personnel Ordinance was not specific enough to provide the clear guidance needed by staff to ensure that they were complying with the Fair Labor Standards Act. Based on the feedback from those meetings, staff proposes the following: (1) amend Article I, Sections 6.0 and 7.0 of the Orange County Personnel Ordinance (see Attachment 1, Amendment to Article I, Sections 6.0 and 7.0) to allow the County Manager to create administrative rules and regulations to carry out the provisions of the Personnel Ordinance; (2) that the manager create such administrative rules and regulations to provide further guidance to both employees and supervisors on their responsibilities under the Personnel Ordinance; and (3) comprehensively revise Article III, Section 3:0 Overtime Compensation of the Personnel Ordinance (see Attachment 2, Current Article III, Section 3.0) as follows: In accordance with the provisions of the Fair Labor Standards Act of 1938, as amended (hereinafter referred to as "ELBA"), and its implementing regulations, any employee, not exempt, authorized to work in excess of the established forty hour workweek shall be compensated either with time off or pay for the actual hours worked in excess of the forty hour workweek at a rate of one and one-half times the hours actually worked or one and one-half times their regular rate of pay. The amendments to the Article I and the revision of Article III direct the County Manager to develop Administrative Rules and Regulations that are consistent not only with the Ordinance but also with federal Fair Labor Standards Act, its implementing regulations and state law. This will allow the County Manager the administrative flexibility to carry out the will of the Board through the development of rules and regulations that are consistent with local, state and federal law and in particular consistent with the Fair Labor Standards Act, which governs overtime compensation. Staff has drafted for your review, Administrative Rules and Regulations for the overtime compensation section of the Personnel Ordinance. (See Attachment 3, Administrative Rules and Regulations: Overtime Compensation) The amendments and the revisions to the Ordinance and a copy of the Administrative Rules and Regulations has been reviewed by the County Attorney, Department Directors and appropriate staff members for review. Staff also provided a presentation to the Board on these proposed revisions at the December 3, 2007 regular meeting. FINANCIAL IMPACT: The financial impact may vary from department to department, based on compliance with the Fair Labor Standards Act and its implementing regulations, but will be reflected in the fiscal 2007-08 budget recommendations presented to the Board. RECOMMENDATIONS: The County Manager recommends that the Board (1) adopt the amendments to Article I, Section 6.0 and 7.0 of the Orange County Personnel Ordinance; (2) adopt the revision of Article III, Section 3.0 acid repeal the current Article III, Section 3.0 upon adoption of the revision; (3) review the Administrative Rules and Regulations: Overtime Compensation and make the changes to the Personnel Ordinance adopted by the Board effective upon the signing of the Administrative Rules and Regulations by the County Manager. 0 Orange Coccnty Personnel Ordinance Issue Date: February 19, 2001 Attachment 1, Revision to Article I, Sections 6.0 and 7.0 Article I Revised The Personnel Organization 1 X08 6.0 Organization -County Board. Of Commissioners The County Board of Commissioners will be responsible for approving personnel ordinances and policies ,including the pay ~ plan, and for making and confirming appointments when so specified by Law. 7.0 Organization -County Manager The County Manager will be responsible to the Board for the creation of administrative rules and regulations that are consistent with and necessary to carry out the provisions of this Personnel Ordinance as well as the administration and technical direction of the personnel program. Changes to the administrative rules and regulations involving substantive matters shall be reviewed by the Board at its next meeting following the change or as soon as practical thereafter. The Manager will appoint, suspend, and remove all County Officers and employees, except for those who are elected by the people of Orange County or whose appointment is otherwise provided for. The County Manager shall make appointments, dismissals, and suspensions in accordance with G.S. Section 153A-82 of the Statutes of North Carolina, this ordinance and any other applicable rules, regulations, ordinances or policies of Orange County. In addition the Manager will: 7.1 Recommend to the Board revisions to the Personnel Ordinance for the Boards consideration; 7.2 Prepare and recommend to the Board revisions to the pay plan for approval; 7.3 Determine administrative, professional and managerial positions to be excluded from entitlement to overtime compensation; 7.4 Establish and maintain a roster of ali persons in the County service, setting forth each officer and employee, class title of position, salary, any changes in class title and status, and such other data as maybe deemed desirable or useful; 7.5 Develop and administer such recruiting programs as may be necessary to obtain an adequate supply of competent applications to meet the needs of the County; 7.6 Develop and coordinate training and educational programs for County employees; Article I -Page 1 0 Orange County Personnel Ordinance Issue Date: February 19, 2001 7.7 Investigate periodically the operation and effect of the personnel provisions of this policy; and 7.8 Perform such other duties as may be assigned by the Board not inconsistent with the policy. Article I -Page 2 0 Orange County Personnel Ordinance Issue Date: January 25, 2006 Attachment 2: Current Article III, Section 3.0 of the Orange County Personnel Ordinance 3.0 Overtime and the Time-Off Plan In keeping with the provisions of the Fair Labor Standards Act, Department Heads shall have the responsibility of controlling overtime in their department. Overtime is neither desired nor expected on a regular basis. However, during peak periods when overtime becomes necessary, it should be distributed as equally as possible among qualified employees in the same classifications, department and shift without regard to age, sex, color, creed, religion, national origin, or physical handicap. 3.1 Bona fide executives, administrative and professional employees are exempt from overtime requirements of the Fair Labor Standards Act if they meet the qualifications set forth in the Act. 3.2 Supervisors shall arrange the work schedules of their employees so as to accomplish the required work within the standard work day. Overtime work shall be considered work performed by anon-exempt employee which exceeds the established work week of that employee. 3.3 Sick leave, annual leave, petty leave, leave without pay, or holidays, do not count when counting hours worked in a particular work week. 3.4 Overtime work must be approved by, and directed by, the department head or the authorized representative of the department head. Unapproved work performed during non-work hours, including time prior to the start of the work day, during the lunch period, and after the work day has concluded, including taking work home, is not considered overtime. 3.5 Non-exempt employees required to work overtime will be compensated with time or paid for such overtime on the basis of one and one-half (1 1/2) times the overtime hours worked or the regular rate of pay provided that: 3.5.1 The work is of an unusual, unscheduled or emergency nature and is directed by the Department Head or the authorized representative of the Department Head. Department heads will be held accountable and therefore, must assure that the work falls within the above stated parameters. 3.5.2 Time off, in lieu of pay, shall be granted whenever feasible and it shall be taken within the pay period. More specifically, it is necessary that all accumulated compensatory time be documented and records to that effect be maintained. Article III Orange County Personnel Ordinance Issue Date: January 25, 2006 Therefore, the procedure for maintenance of these records is as follows: -Submit to the Personnel Department, by the second working day of each pay period, a record of all authorized compensatory time. This record must include -purpose of the overtime, number of hours earned, and number of hours taken by each non exempt employee. Forms for recording this time may be secured from the Personnel Department. -Department Heads must assure that the employees are permitted to take the time earned in accordance with this provision. All time off earned, and not taken within the pay period earned will be paid at one and one half times the hourly rate. 3.5.3 Overtime payment shall be made in accordance with the following guidelines: 1. Current time off balance for the department and/or the non-exempt employee indicates that it is unreasonable that time off can be granted in accordance with the Fair Labor Standards Act; 2. Surplus funds must be available in the Personnel Service Account of the department. 3. Department Heads must secure prior approval of the Manager before authorizing non-exempt employees to work on the basis of a cash payment for overtime. 3.6 A record of all overtime work authorized shall be approved by the department head and recorded on the non-exempt employee's time sheet appropriately. The time must be signed by that employee and certified by the department head. Such record must be preserved by the Personnel Department for a period of two complete fiscal years. If the County Manager has granted pay for overtime, a copy of the time sheet should accompany a Personnel Action and Payroll Form in request for payment, to the Personnel Department. 3.7 Time off must be exhausted before annual leave is taken. No non-exempt employee shall be paid for any accrued time off at separation. Article III . ~..:/ Orange County Personnel Rules and Regulations Manual Issue Date: / _, 20_ Attachment 3: Administrative Rules and Regulations Overtime Compensation I. ORDINANCE In accordance with the provisions of the Fair Labor Standards Act of 1938, as amended (hereinafter referred to as "FLSA"), and its implementing regulations, any employee, not exempt, authorized to work in excess of the established forty hour workweek shall be compensated either with time off or pay for the actual hours worked in excess of the forty hour workweek at a rate of one and one-half times the hours actually worked or one and one-half times their regular rate of pay. See Orange County Personnel Ordinance, Article III, Section 3.0, adopted _ , 20_. II. AUTHORITY The Orange County Personnel Ordinance, Article 1, Section 7.0 provides that the County Manager will promulgate any rules or regulations necessary to carry out the provision of this section of the Personnel Ordinance. III. RULE The purpose of this rule is to implement and give effect to Article III, Section 3.0 of the Orange County Personnel Ordinance. Overtime Compensation. Overtime is neither desired nor expected on a regular basis. Department Directors shall hold hours worked by employees to the standard 40-hour workweek, except in cases where a greater number of hours of work are required because of an unusual, unscheduled, or emergency or necessary activities make it essential. Department Directors are responsible for the manner in which overtime is authorized, prohibiting unauthorized overtime and ensuring that all employees are compensated for time worked within the requirements of the law. The practice of overtime work will be subject to review by the County Manager. Such review will take into consideration organizational structure, scheduling of work, position complement,'andgersonnel classifications. IV. ADMINISTRATIVE RULES AND REGULATIONS A. Workweek -The standard workweek is forty hours as defined in Article III, Section 1.0 of the Orange County Personnel Ordinance. B. Work Time -For purposes of this Article, an employee who in a workweek uses paid or non paid leave and actually works forty hours or less in a workweek, shall be paid their regular salary in accordance with established personnel policies. 1. Callbacks -When an employee is called back by a Department Director or an authorized representative to perform work, the amount of time that the employee works is considered work dine. If actual hours worked do not equal, at least, two hours; the employee is credited with a minimum of two Page 1 Orange County Personnel Rules and Regulations Manual Issue Date: / _, 20_ hours work time. Travel time to and from the employee's regular place of work due to a callback is not considered work time. Other travel time due to a callback may be compensable on a case-by-case basis. a. Call back pay must be included in calculating an,employee's regular rate of pay for overtime compensation. b. When an employee who is called back to work, works less than two hours, the time worked is recorded as the actual time worked; the amount of time necessary to make up the differences is considered "paid call back time -not worked" and is not considered in calculating overtime. 2. On Call - An employee who is on call and required to remain at or so near their place of employment such that the employee cannot use their time effectively for their own personal purposes, then the time spent is considered work time. If an employee is required to leave word where he/she can be reached or is required to wear a paging device, but is able to move or travel freely, the time spent is not considered work time. 3. Training -Required attendance at training sessions, workshops, seminars, or other meetings is considered work time regardless of whether it occurs before, during, or after the employee's regular work schedule. 4. Meal Period -When an employee is required or permitted to work during the meal period, the time is considered work time. Travel Time -Ordinary travel to and from work at scheduled work hours is not work time. Travel during the work day is generally included in work time. This includes travel from job site to job site or to meetings. Out-of- town travel as work time depends on circumstances and will be decided on a case-by-case basis. C. Salary -Salary represents an employee's annual predetermined base pay for a standard workweek. For computing overtime pay, the employee's rate of pay is the hourly rate of pay. The hourly rate of pay is obtained by dividing the base annual salary by 2080 hours (52 weeks x 40 hours per week). The regular hourly rate must include all remuneration for employment paid to, or on behalf of, the employee, except payments specifically excluded by the FLSA. Payments that are not excluded and must be included in the hourly rate are: (a) longevity pay and (b) on-call compensation. D. Compensation -Employees shall receive regular pay for actual hours worked in a standard 40-hour workweek, with the provision that an additional amount equal to 1 %z times the employee's regular hourly rate times the number of hours worked in Page 2 0 Orange County Personnel Rules and Regulations Manual Issue Date: / _, 20_ excess of 40 shall be added to the base pay or; an employee shall be given "compensatory time off ' on the basis of 11/2 times the amount of time worked beyond 40 hours during a workweek. The 40-hour workweek is not pro-rated for part-time employees. If a 20-hour/week employee works 25 hours one week, the extra five hours are compensated at the employee's regular rate of pay. Overtime worked shall be recorded and compensated in units of one-tenth of an hour. l . Compensatory Time Off -Compensatory time off, in lieu of pay, shall be granted whenever feasible in accordance with the following provisions: a. Compensatory Time Off shall be taken within thirty days of date the overtime is earned. b. On a case-by-case basis, with the approval of the County Manager, a Department Director may authorize the accumulation of an employees' time off (accrued time) beyond thirty days. The department director must demonstrate to the Manager that to extend the period for accrued time off would not unduly disrupt the operation of the Department; however, in no case shall time off accumulate more than 90 days beyond the time worked. c. Compensatory time off may be accumulated up to a maximum of 180 hours of straight work time or 240 overtime hours. Any overtime worked above this amount shall be paid in the employee's next regular paycheck. d. Department Directors must assure that the employees are permitted to take the time off within thirty days of time earned, and time off should not be denied unless it would unduly disrupt the operation of the department. e. Compensatory time shall be taken before any other leave with or without pay. (Exception may be made for prospective retirees who may need to exhaust vacation leave prior to retirement.) f. If compensatory time off is not taken by the end of the thirty-day period, the overtime pay shall be included in the employee's next regular paycheck. If any extended period of time is granted in accordance with section (b) above and not taken, then overtime pay shall be included in the employee's next regular paycheck after the time for the extension has ended. 2. Paid Compensation -Compensation paid to an employee for overtime work shall be paid at the regular rate of pay earned by the employee at the time the employee receives the compensation. Overtime payment shall be made in accordance with the following guidelines: Page 3 to Orange County Personnel Rules and Regulations Manual Issue Date: / _, 20_ a. The Department Director or the authorized representative of the Department Director must indicate in writing to the Human Resource Director that an employee's use of compensatory time off would unduly disrupt the operation of the department and cannot be granted within the thirty day time period. b. Funds must be available in the Department's Personnel Services Account. c. Department Directors must receive prior approval from the County Manager before authorizing non-exempt employees to work on the basis of a cash payment for overtime. F. Approval Required -Overtime must be pre-approved by the Department Director or an authorized representative of the Department Director. 1. To be authorized, the work must be of an unusual, unscheduled, or emergency nature or necessary activities make it essential. 2. An employee who works hours without the permission or contrary to the instructions of the department head or their supervisor may not be compensated for overtime hours worked. 3. Unrecorded hours worked during a workweek by an employee at the job site or at home must be counted as hours worked if the Department Director or authorized representative knows or has reasons to know of such practice. The Department Director or authorized representative must enforce the no-work rule and may not unjustly benefit from work performed. G. Record- A record of all overtime work authorized shall be approved by the Department Director and recorded on the non-exempt employee's time sheet appropriately. The time sheet must be signed by that employee and certified by the Department Director. Such record must be preserved by the Human Resource Department for a period of two complete fiscal years. If the County Manager has granted pay for overtime, a copy of the time sheet should accompany the appropriate overtime payment request form, to the Human Resource Department. H. Separation -Non-exempt employees shall be paid for any unused compensatory time off at separation at a rate of compensation not less than the average rate received by the employee during the last three years of the employee's employment, or the final regular rate received by the employee whichever is higher. I. Transfer to Exempt Position -When anon-exempt employee is transferred to an exempt position, any accrued compensatory time is transferable and must be used Page 4 II Orange County Personnel Rules and Regulations Manual Issue Date: / _, 20_ prior to using any sick or vacation time. The Department must maintain separate balances of compensatory time until the transferred balance is exhausted. Upon separation, an exempt employee is paid for any remaining compensatory time that was earned while non-exempt. First Responders - (Sheriff Department Only) Police officers, detectives, deputy sheriffs, investigators and any other First Responders covered by the FLSA employees ("first responders") who perform work such as preventing, or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; and other similar work are not exempt under Section 13 (a) (1) of the FLSA regulations and thus are protected by the minimum wage and overtime provisions of the FLSA. Any first responder employed in a bona fide executive, administrative or professional capacity as defined in the FLSA is exempt under this section of the Ordinance. 2. First Responder Workweek - a. For schedules requiring a 40-hour workweek; the policies on hours of work and overtime pay fora 40-hour workweek will apply. b. For schedules requiring more than 40 hours in a workweek the following is permissible. The "work period" will consist of 28 consecutive days. In the workweek period of 28 consecutive days the employee shall receive, for tours of duty, which in the aggregate exceed 171 hours, compensatory time off or a cash payment for the overtime hours at a rate of one and one-half times the hours actually worked or one and one-half times their regular rate of pay. 3. First Responder Call Backs -Emergency situation may arise in which an employee is called back to work to avoid significant service disruption, avoid placing employees or the public in unsafe situations, protect and/or provide emergency services to property or equipment; or to respond to emergencies. An employee who is called back to the work site may receive compensation in the form of compensatory time off or premium pay at a rate equal to one and one-half times their regular rate for every hour worked on call back time. The on-call rate of pay shall be based on the hourly rate applicable to that position. Premium pay will be received in the employees next regular pay period. Page 5 ,a Orange County Personnel Rules and Regulations Manual Issue Date: / _, 20_ 4. If a first responder under these provisions has a positive balance of earned compensatory time off and is promoted to an exempt position, the accumulation of earned compensatory time off must be paid in cash before the employee goes into the exempt position. A first responder cannot accumulate more than 320 straight time hours or 480 hours of compensatory time. Any overtime earned in excess of 320 hours must be paid in cash as earned. If compensatory time off is used, it shall be taken within twelve months from the date earned. If compensatory time off is not taken by the end of the twelve-month period, it shall be paid in the employee's next regular paycheck. 6. Employees engaged in first responder activities may also engage in some non-first responder work as an incident to or in conjunction with their first responder activities. The performance of such work will not cause the employee to lose first responder status unless such work exceeds twenty percent of the total hours worked by that employee during the workweek or the applicable work period. A person who spends more than twenty percent of his working time in non-first responder activities shall not be considered as being engaged in first responder activities for coverage under this subsection of policy. K. Occasional or Sporadic Employment - An employee, "employed" by a County Department may, solely, at their option request advance review and approval of the County Manager to work part-time occasionally or sporadically in a different County Department. If approved to work part-time occasionally or sporadically in another County Department in a significantly different capacity from their regular employment, the hours worked in the different jobs shall not be combined for the purpose of determining overtime compensation under this policy. L. Volunteer - An employee who volunteers hours of service to the County, provided that "such service is not of the same type of service which the individual is employed to perform with the County, hours of service will not considered time worked for overtime compensation. The phrase "same type of services" means similar or identical services. An example of an employee who could volunteer - an employee of EMS who volunteers to work as a referee for the Department of Parks and Recreation. An employee may volunteer hours of service that are of the same type of service that they perform for the County to another governmental entity, agency, or a for- or non-profit entity and those hours of service would not constitute work time for the purposed of overtime compensation. Volunteer service must be the employees' own free will, with no pressure or coercion, either directly or indirectly, from their department director or supervisor. M. Substitution -Two persons employed by the same Department may agree, solely at their option and with the approval of the Department Director or authorized representative, to substitute for one another during scheduled work hours in Page 6 /3 Orange County Personnel Rules and Regulations Manual Issue Date: / _, 20_ performance of work in the same capacity. The hours worked in a substituting capacity shall be excluded from the calculation of hours for which the substituting employee is entitled to overtime compensation under this policy. N. Fluctuating Workweek - A salaried non-exempt employee whose hours worked in a workweek vary from week to week, may be paid pursuant to an understanding that the employee will receive a fixed amount as straight time pay for whatever hours the employee are called upon to work in a workweek. The employee will be compensated for all hours worked over 40 in a workweek at a rate not less than one-half their regular hourly rate of pay. To use the alternative method of calculation for overtime pay all of the following conditions must be met. 1. An employee's hours must fluctuate from week to week; 2. The employee must receive a fixed weekly salary that remains the same regardless of the number of hours that the employee works during the week; 3. The fixed amount must be sufficient to provide compensation at a regular rate not less than the legal minimum wage; 4. The employer and the employee must have a clear, mutual understanding that the employer will pay the employee the fixed weekly salary regardless of the hours worked; and 5. The employee must receive a fifty percent overtime premium in addition to the fixed weekly salary for all hours that the employee works in excess of forty during that week. This Section of the Rules and Regulations will become effective upon signing of this document. Adopted this the day of January, 2008 County Manager Page 7