NC Register Volume 19 Issue 06 - Office of Administrative Hearings

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PROPOSED RULES(f) Decisions by an employee need not have a finality that goeswith unlimited authority and a complete absence of review. It isacceptable for the decisions to consist of recommendations foraction or to be subject to review.(g) Salary Requirement - The one hundred fifty-five dollars($155) weekly salary requirement for administrative exemptionis met if the employee is compensated bi-weekly on a salarybasis of three hundred ten dollars ($310), semi-monthly on asalary basis of three hundred thirty-five dollars and eighty-threecents ($335.83) or monthly on a salary basis of six hundredseventy-one dollars and sixty-seven cents ($671.67).(h) Non-exempt Work/Percentage Rule - If an employee withsome administrative duties works for more than 20 percent ofthe workweek on non-exempt work, the exemption fails.Authority G.S. 126-4.25 NCAC 01D .1944 PROFESSIONAL EMPLOYEES(a) An employee is exempt as a professional employee, if theseconditions are met:(1) The primary duty must consist of performanceof: work requiring knowledge of an advancedtype in the field of science or learning,customarily acquired by prolonged specializedinstructions and study, as distinguished fromgeneral academic education (such as doctors,lawyers, engineers, chemists, nurses, etc.); orwork that is creative and original (such artists,writers, architects, designers, musicians,actors, certain radio and television announcers,etc.); or activities of imparting knowledgesuch as teaching, tutoring, instructing,lecturing, etc.;(2) work requires the consistent exercise ofdiscretion and judgement in its performance;(3) does not devote more than 20 percent of hoursworked during workweek in performance ofduties which are not an essential part of andnecessarily incident to work described in (a)(1)of this Rule;(4) is paid on salary or fee basis of not less thanone hundred seventy dollars ($170) a week.(This salary or fee requirement does not applyto an employee who is the holder of validlicense or certificate permitting practice of lawor medicine, or in the case of interns orresident physicians, or employees employedand engaged as teachers in activities referredto in (a)(1) in this Rule).Exception: An employee employed in a bona fide professionalcapacity under above terms who is paid salary or fee of at leasttwo hundred fifty dollars ($250) a week thirteen thousand dollars($13,000) annual rate is exempt. The percentage test fornon-exempt work does not apply to such an employee.(b) Learned Professions - The learned professions are describedas those requiring knowledge of an advanced type in a field ofscience or learning customarily acquired by a prolonged courseof specialized intellectual instruction and study. These pointsshould be noted:(1) The knowledge has to be a type that must beattained at least at or above the collegiatelevel.(2) The word customarily implies that in the vastmajority of cases, specific academic training isnecessary for entrance into the profession.However, the exemption is available toemployees who have gained their knowledgeby home study and experience such as lawyerswho have not gone to law school.(3) The exemption does not apply to entireoccupational groups regardless of the specificduties of the particular individual. Forexample, exemption of accountants must bedetermined on the basis of the individualaccountant's duties and other qualifications.(c) Artistic Professions - The requirements for the artistic typeof professional work are that the work has to be original andcreative in character in a recognized artistic field and the resultof which must depend primarily on the invention, imagination,or talent of the employee. This exemption includes such fieldsas music, writing, the theater, and the plastic and graphic arts. Inaddition, the requirements of (a)(2) through (4) must also bemet.Authority G.S. 126-4.25 NCAC 01D .1945 SPECIAL PROVISIONS(a) Child Labor:(1) Age limitations shall be in accordance with 25NCAC 01H .0605(a)(c).(2) Exceptions to the 18-year age limitation shallconform to the Federal child labor standards.(b)(a) Agricultural Workers:(1) Hours worked by agricultural workers may beaveraged over a 12-month period. The numberof hours worked shall not exceed 2,080 hours.Upon leaving state service, an agriculturalworker shall be paid for any accumulatedovertime.(2) Agricultural workers are defined as workerswho cultivate the soil or grow or harvest crops,engage in dairying, or who raise livestock,bees or poultry, or perform closely relatedresearch.(c)(b) Student Workers: A student shall be considered anemployee subject to the State Personnel Act only if the studentemployeeis employed by the institution on a full-timepermanent basis (as defined by rules of the State PersonnelCommission) in a permanent position established and governedpursuant to requirements of the State Personnel Commission.(d)(c) In-Resident Employment:(1) In-Resident employment includes employeessuch as Cottage Parents and DormitoryDirectors who reside on the employer'spremises, or who are usually on duty orsubject to call at all times except when thefacility is closed. It is necessary that theseemployees be required to work irregular19:06 NORTH CAROLINA REGISTER September 15, 2004626
PROPOSED RULESschedules. The employing agency shall arriveat an agreement with the employee as to whatconstitutes the normal number of hoursworked during a given workweek, taking intoconsideration the time that the employeeengages in private pursuits such as eating,sleeping, entertaining and the time they areable to be away from the facility for personalreasons. The following basis of pay may beadopted for employees in such categories:(2) Salary - The annual salary and monthly salaryrates of an employee shall be established undercurrent personnel policy. With the employee'sagreement, this salary is to represent theemployee's straight-time pay for the agreedupon normal number hours on duty per week.(3) Overtime Compensation - It is anticipated thatweekly schedules will fluctuate. When it isnecessary to work in excess of the agreed uponworkweek hours, the employees will be paidtime and one-half the hourly rate for all hoursworked in excess of the normal workweek.(e)(d) Registered Nurses:(1) When possible, the compensation shall be inthe form of time off. When the employeenormally has 24 hours responsibility, (as in thecase of some supervisors and most directors),overtime compensation provisions shall not beapplicable.(2) Where an employee is assigned duties at alower classification level; the base rate of paymay not exceed the maximum rate of the lowerlevel assignment.(f) Law Enforcement Activities:(1) The requirements for law enforcementactivities are outlined in the Fair LaborStandards Act, Code of Federal Regulations,Title 29, Part 553.200-553.233.(2) Under Section 7(k) of the Act, agencies maychoose to pay law enforcement personnelovertime compensation in work periods of 28consecutive days after 171 hours of work.Authority G.S. 126-4.25 NCAC 01D .1946 OT/COMP TIME OFF OPT/LAWENF: FIRE PROT/EMGCY RESP PERSThe following provisions are applicable only to agencies whoemploy persons in nonexempt law enforcement/fireprotection/emergency response positions. Such agencies may,by letter to the State Personnel Director, choose to utilize thefollowing overtime compensation provisions in lieu of thecustomary overtime compensation provisions elsewhere in thisSection:(1) Under these provisions, nonexempt persons inlaw enforcement positions who work morethan 171 hours (or 212 hours for nonexemptpersons in fire protection or emergencyresponse positions) in a 28 consecutive daywork period may be given compensatory timeoff in lieu of cash payment for those overtimehours worked.(2) Compensatory time off earned must be usedno later than 180 days from the date thecompensatory time off was earned.(3) Compensatory time off earned, but not usedwithin 180 days from its being earned must bepaid for in cash in the first pay periodfollowing the expiration of the 180 days.(4) Overtime earned under these provisions mustbe compensated at the rate of one and one-halftime the regular hourly rate or one andone-half hours of compensatory time off foreach hour of overtime earned.(5) If an employee under these provisions has apositive balance of earned compensatory timeoff and is promoted to an exempt position, theaccumulation of earned compensatory time offmust be paid in cash before the employee goesinto the exempt position.(6) Employees cannot accumulate more than 320overtime hours (480 straight-time hours). Anyovertime earned in excess of 320 hours mustbe paid in cash as earned.Authority G.S. 126-4.25 NCAC 01D .1947 TOUR OF DUTY ANDCOMPENSABLE HOURS OF WORKThe term "tour of duty" is a unique concept applicable only toemployees in law enforcement and fire protection activities.This term means the period of time during which an employee isconsidered to be on duty for purposes of determiningcompensable hours. It may be a scheduled or unscheduledperiod. Scheduled periods also include time spent in workoutside the "shift" which the public agency employer assigns tothe employee. Unscheduled periods include time spent in courtby officers, time spent handling emergency situations and timespent working after a shift to complete an assignment. Suchtime must be included in the compensable tour of duty eventhough the specific work performed may not have been assignedin advance. The tour of duty does not include time spentworking on an occasional or sporadic and part-time basis in adifferent capacity from the regular work. Neither does it includetime spent substituting for other employees by mutualagreement. The tour of duty also does not include time spent involunteer law enforcement and fire protection activitiesperformed for a different jurisdiction.Authority G.S. 126-4.25 NCAC 01D .1948 OCCASIONAL OR SPORADICEMPLOYMENT//DIFFERENT CAPACITY(a) Where employees, solely at their option, work occasionallyor sporadically on a part-time basis for the same public agencyin a different capacity from their regular employment, the hoursworked in the different jobs shall not be combined for the19:06 NORTH CAROLINA REGISTER September 15, 2004627
Page 1 and 2: NORTH CAROLINAREGISTERIN THIS ISSUE
Page 3 and 4: NORTH CAROLINA REGISTERPublication
Page 5 and 6: EXECUTIVE ORDERSEXECUTIVE ORDER NO.
Page 7 and 8: EXECUTIVE ORDERSThis Executive Orde
Page 9 and 10: IN ADDITIONNC DENR will provide aux
Page 11 and 12: IN ADDITION1. In construction where
Page 13 and 14: PROPOSED RULESNote from the Codifie
Page 15 and 16: PROPOSED RULES(5) four or more crim
Page 17 and 18: PROPOSED RULESAuthority G.S. 17E-4;
Page 19 and 20: PROPOSED RULESSECTION .0700 - MINIM
Page 21 and 22: PROPOSED RULEStraining in all topic
Page 23 and 24: PROPOSED RULESassignments. Instruct
Page 25 and 26: PROPOSED RULESthan one year, then t
Page 27 and 28: PROPOSED RULESexpiration of the ins
Page 29 and 30: PROPOSED RULESOF ON-SITE SUBSURFACE
Page 31 and 32: PROPOSED RULESdemonstration backups
Page 33 and 34: PROPOSED RULESthat the standards se
Page 35 and 36: PROPOSED RULESsubsequent changes in
Page 37 and 38: PROPOSED RULES(6) "Successful Compl
Page 39 and 40: PROPOSED RULESdate shall be subject
Page 41 and 42: PROPOSED RULESunauthorized overtime
Page 43 and 44: PROPOSED RULES(9) Regular hourly ra
Page 45: PROPOSED RULESAuthority G.S. 126-4.
Page 49 and 50: TEMPORARY RULESNote from the Codifi
Page 51 and 52: TEMPORARY RULESsought, whether or n
Page 53 and 54: APPROVED RULESterm of the loan with
Page 55 and 56: APPROVED RULESmodifications or repl
Page 57 and 58: APPROVED RULEShigher distribution s
Page 59 and 60: RULES REVIEW COMMISSIONThis Section
Page 61 and 62: RULES REVIEW COMMISSION1 NCAC 41C .
Page 63 and 64: RULES REVIEW COMMISSIONVictim Safet
Page 65 and 66: RULES REVIEW COMMISSIONAmend/*Equip
Page 67 and 68: RULES REVIEW COMMISSIONRepeal/*Floo
Page 69 and 70: RULES REVIEW COMMISSIONAmend/*Adver
Page 71 and 72: RULES REVIEW COMMISSIONAmend/*Actio
Page 73 and 74: CONTESTED CASE DECISIONSThis Sectio
Page 75: CONTESTED CASE DECISIONSOFFICE OF S

NC Register Volume 19 Issue 06 - Office of Administrative Hearings

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