NC Register Volume 19 Issue 06 - Office of Administrative Hearings

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PROPOSED RULES(2) A licensee experiencing physical disability orillness if supporting documentation isapproved by the Board. Such documentationshall be in the form of a statement from aphysician, or medical records which show thatthe disability or illness prevented the licensee'sparticipation in a course which the licenseehad enrolled, or prevented the licensee'sparticipation in the continuing educationprogram for at least 120 consecutive days in ayear.Authority G.S. 74F-6.21 NCAC 29 .0806 NON COMPLIANCEIf the Board disallows any credits claimed by an applicant, thenthe licensee shall have 90 calendar days after notification tosubstantiate the original claim or obtain other contact hours tomeet the minimum requirements. Upon failure to meet thisrequirement, the applicant's license shall expire effectiveimmediately.Authority G.S. 74F-6.TITLE 25 – OFFICE OF STATE PERSONNELNotice is hereby given in accordance with G.S. 150B-21.2 thatthe State Personnel Commission intends to amend the rules citedas 25 NCAC 01D .1924-.1925, .1928-.1929, .1945 and repealthe rules cited as 25 NCAC 01D .1930, .1932-.1934, .1936,.1938-.1944, .1946-.1951.Proposed Effective Date: January 1, 2005Public Hearing:Date: October 6, 2004Time: 10:00 a.m.Location: Third Floor Conference Room, AdministrationBuilding, 116 West Jones St., Raleigh, NCReason for Proposed Action: The Fair Labor Standards Actwas amended by Congress, which necessitated a change to therules on Hours of Work and Overtime Compensation. We areproposing to repeal all rules that mirror the Federal statutesince it is not necessary to repeat rules that are in the statutes.The only rules that remain are those specific to North Carolinastate government employees.Procedure by which a person can object to the agency on aproposed rule: Persons may object to these Rules by contactingPeggy Oliver at (919) 733-7108 or in writing at 1331 MailService Center, Raleigh, NC 27699-1331.Written comments may be submitted to: Peggy Oliver, 1331Mail Service Center, Raleigh, NC 27699-1331, phone (919) 733-7108, fax (919) 733-9750, and email peggy.oliver@ncmail.net.Comment period ends: November 15, 2004Procedure for Subjecting a Proposed Rule to LegislativeReview: If an objection is not resolved prior to the adoption ofthe rule, a person may also submit written objections to theRules Review Commission. If the Rules Review Commissionreceives written and signed objections in accordance with G.S.150B-21.3(b2) from 10 or more persons clearly requestingreview by the legislature and the Rules Review Commissionapproves the rule, the rule will become effective as provided inG.S. 150B-21.3(b1). The Commission will receive writtenobjections until 5:00 p.m. on the day following the day theCommission approves the rule. The Commission will receivethose objections by mail, delivery service, hand delivery, orfacsimile transmission. If you have any further questionsconcerning the submission of objections to the Commission,please call a Commission staff attorney at 919-733-2721.Fiscal ImpactStateLocalSubstantive (>$3,000,000)NoneCHAPTER 01 – OFFICE OF STATE PERSONNELSUBCHAPTER 01D – COMPENSATIONSECTION .1900 - HOURS OF WORK AND OVERTIMECOMPENSATION25 NCAC 01D .1924 STATE EMPLOYEES SUBJECTTO THE FAIR LABOR STANDARDS ACT(a) State government shall follow the provisions of the FairLabor Standards Act.(b) The State Personnel Commission may, in addition, approvespecial provisions where work situations dictate a need.(c) Employees must shall be paid not less than three dollars andthirty-five cents ($3.35) per hour the Federal minimum wage. Areview of all payrolls should be made to assure that allemployees are receiving at least the statutorily required rate.Authority G.S. 126-4.25 NCAC 01D .1925 OVERTIME COMPENSATION(a) The payment of premium time and one-half rates in form ofmonetary compensation or time off is required for hours workedin excess of 40 within a work week, with exception of thoseconsidered exempt as Executive, Administrative, or Professionalemployees. by the Fair Labor Standards Act.(b) Agency heads and supervisors shall hold hours worked bythe employee to the state's established 40-hour workweekstandard except in those cases where excess hours of work arenecessary because of weather conditions, necessary seasonalactivity or emergencies. It shall be a responsibility of eachagency or executive head to determine that the provisions of thestate's policy on overtime pay are administered in the bestinterest of the state.(c) Although each agency head is responsible for the manner inwhich overtime is authorized, it is equally important to control19:06 NORTH CAROLINA REGISTER September 15, 2004620
PROPOSED RULESunauthorized overtime. Unauthorized work shall be counted ashours worked if the employer should have stopped it but did not,or if the employer knows or has reason to know of this practice.Each agency is responsible for internal controls which willprovide a means of reviewing and evaluating the use ofovertime.(d)(c) The practice of overtime work will be subject to reviewby the Office of State Personnel. Such review will take intoconsideration organizational structure, scheduling of work,position complement, and personnel classifications.Authority G.S. 126-4.25 NCAC 01D .1928 COMPENSATION – NON-EXEMPT(a) The non-exempt employee shall receive straight-time pay fora standard 40-hour workweek, with the provision that anadditional amount equal to time and one-half the employee'sregular hourly rate multiplied by the number of hours worked inexcess of 40 shall be added to the base pay. Such payment mustbe made in form of monetary compensation or compensable timeoff. It is the policy of the State of North Carolina, wheneverpossible, to give compensatory time off, in lieu of monetarycompensation for hours worked in excess of 40 hours per workweek. The decision as to whether to give compensatory timeoff, rather than monetary compensation, for overtime worked issolely within the discretion of management. Compensatory timeoff shall be scheduled by management, although reasonableeffort shall be made to accommodate the employee as to suchscheduling.(b) An employee shall be given compensatory time off on thebasis of one and one-half times the amount of time workedbeyond 40 hours during a week. Compensatory time may beaccumulated up to a maximum of 240 hours (160 hours straighttime) and shall be taken within 12 months from the date theovertime is performed. If compensatory time off is not given bythe end of the 12-month period, the overtime pay shall beincluded in the employee's next regular paycheck. Any overtimeworked above this amount shall be paid in the employee's nextregular paycheck. Overtime worked shall be recorded andcompensated in units of one-tenth of an hour.NOTE: The preceding provisions are not applicable to personsin law enforcement or fire protection activities and in residenceemployees.(c) Prior to employment, each successful candidate for stateemployment in a position subject to hours of work and overtimepay standards must sign a form acknowledging that it has beenexplained to him that it is the state's policy to give time off inlieu of monetary compensation, wherever possible, for hoursworked beyond 40 in a work week. Agreement to this is acondition of employment with the state; failure or refusal to signsuch agreement will prevent employment of that person. Thissigned form shall be a part of the employee's personnel file; itmust be kept for at least three years following that person'sseparation from state employment.(d) Upon transfer to another agency or termination ofemployment, an employee shall be paid for unusedcompensatory time off at a rate of compensation not less thaneither the average regular rate received by such employee duringthe last three years of the employee's employment or the finalregular rate received by such employee, whichever is higher.Authority G.S. 126-4.25 NCAC 01D .1929 HOURLY RATE OF PAY(a) The hourly rate of pay is the rate published by the Office ofState Personnel and is obtained by dividing the annual salary by2080 hours (52 weeks multiplied by 40 hours per week).(b) The rate that must be used in computing overtime is referredto as the regular hourly rate. The regular hourly rate mustinclude all remuneration for employment paid to, or on behalfof, the employee, except payments specifically excluded by theAct. Payments that are not excluded and must be included in thehourly rate are:(1) Shift Premium Pay;(2) Longevity Pay;(3) On-Call Compensation.These payments must be included in order to comply with theprovisions of the Fair Labor Standards Act (FLSA).(c) Longevity pay must be included in the regular rate whencomputing overtime. However, to avoid recomputations whenovertime is due, the following procedure may be used: At theend of each calendar year, the total dollar amount of overtimepaid is determined and this amount is multiplied by the percentof the employee's longevity pay rate.(d) Overtime for an employee working in two positions withdifferent rates of pay is paid at the average of the two rates ofpay for each position.Authority G.S. 126-4.25 NCAC 01D .1930 NON-OVERTIMEWORKWEEKSWhen an employee works 40 hours or less during a workweekbecause of vacation, holidays, or sick leave, the regular weeklysalary is paid in accordance with established personnel policies.Authority G.S. 126-4.25 NCAC 01D .1932 HOURS WORKEDGenerally, all time during which an employee is required,suffered, or permitted to be on the employer's premises on dutyor at a prescribed work place, except for meals or other periodswhen the employee is free from duty, is considered as hoursworked. This is so even if the duties are pleasurable rather thanburdensome and even if no productive work is actuallyperformed. In the large majority of cases, the determination ofan employee's working hours will be easily calculable under thisformula and will include, in the ordinary case, all hours from thebeginning of the work day to the end, with the exception ofperiods when the employee is relieved of all duties for thepurpose of eating meals.Authority G.S. 126-4.25 NCAC 01D .1933 UNAUTHORIZED WORKHours worked by an employee without the employer'spermission or contrary to instructions may or may not be19:06 NORTH CAROLINA REGISTER September 15, 2004621
Page 1 and 2: NORTH CAROLINAREGISTERIN THIS ISSUE
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Page 35 and 36: PROPOSED RULESsubsequent changes in
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Page 45 and 46: PROPOSED RULESAuthority G.S. 126-4.
Page 47 and 48: PROPOSED RULESschedules. The employ
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Page 65 and 66: RULES REVIEW COMMISSIONAmend/*Equip
Page 67 and 68: RULES REVIEW COMMISSIONRepeal/*Floo
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Page 73 and 74: CONTESTED CASE DECISIONSThis Sectio
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NC Register Volume 19 Issue 06 - Office of Administrative Hearings

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