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November 2019 3
Personnel File Guidance Ques ons About Over me Rules
If you are an employer, be sure to understand that working past 40 hours
triggers over me rules for certain employees. There’s no law—federal or
state—that caps the number of hours a person can work (other than for
minors). Here’s what you need to know for 2020 and beyond.
Federal over me pay rules under the Fair Labor Standards Act (FLSA) come
into play when employees who are not “exempt” work more than 40 hours
in a workweek. Once they pass this threshold, they must be paid one and
one-half mes their regular rate per hour (“ me and a half”).
What Should Be Kept in “The Personnel File?”
V Documents Used in Recrui ng, Screening, A workweek is the period fi xed by an employer, but need not start on
and Hiring of Candidates Sunday or Monday. So, any fi xed and regularly recurring period of 168
hours is a workweek. There is no requirement to pay double me if the
V Job Descrip ons
extra hours are worked on nights, weekends, or holidays.
V Wri en Documenta ons of Acts Taken
Place in the Course of Employment The over me pay rules apply only to employees who are not considered
V Pay and Compensa on Records “exempt.” Exemp on is based on how much they’re paid, how they’re paid
V Educa on and Training Records (hourly or by salary), and the type of work they do.
V Documenta on of Employee Performance Under a new fi nal rule eff ec ve on January
V Employee Recogni on Programs 1, 2020, the standard salary level at which
V Warnings, Counseling and Disciplinary employees remain nonexempt and must
Ac ons receive over me pay if they work more
V Documents Regarding Termina on of than 40 hours is increased to $684 per
Employment week, (the equivalent of $35,568 per year).
Because of the increase in the salary level,
Documents NOT Kept in Personnel File the government es mates that more than
V Medical and insurance records, including 1.3 million workers are poten ally eligible for over me pay.
drug tes ng results
Employees who are subject to a “minimal du es test” and receive certain
V EEO sta s cal informa on pertaining to
protected employment status compensa on (Salary level of $107,432 per year or more) are called
highly-compensated employees (HCEs). HCEs are exempt from over me
V Interview notes and employment test rules. These include execu ves, administrators, outside sales people, and
results
certain computer employees. To qualify for the exemp on, in addi on to
V Invita on to self-iden fy disability or the minimal du es test, such employees must receive salary of at least a
veteran status certain amount.
V U. S. Ci zenship and Immigra on Services
I-9 forms and suppor ng documenta on Employers can take into account non-discre onary bonuses and incen ve
V Safety training records payments (including commissions) that are paid at least annually to sa sfy
up to 10% of the standard salary level.
V Child support or wage garnishment orders
V Documents created in an cipa on of, An employer must count all hours that employees work. But this does not
or in response to, li ga on, including include meal breaks, whether paid or unpaid, if employees are relieved of
inves ga on reports, notes, e-mails and du es during that period.
other wri ngs
If an employee is nonexempt, he or she must receive over me pay
V Confi den al, privileged, a orney-client related to hours in excess of 40 for the workweek. Off ering “comp me,”
privileged and need-to-know-only
informa on documen ng employee to balance hours from one weeks hour’s to the next week’s hours is not
performance allowed.
V Claims for workers’ compensa on States can create their own over me pay rules, if these rules are more
V Informa on obtained from background protec ve for workers.
inves ga ons and reference checks
Requests for verifi ca on of employment The new federal rules do not provide for automa c increases in the dollar
and/or payroll informa on and any amounts for the standard salary level and the HCE salary level. But it
wri en responses to such requests indicated that it intends to update the thresholds more regularly in the
future. For more informa on and resources, go to the DOL’s Wage and
Hour Division, h ps://www.dol.gov/whd/.
Timber Products Manufacturers Associa on
