Policy Issuance No.

19, Overtime
January 16, 2006
Page 2

3. Overtime: time worked in excess of 40 hours in one work week

(i.e.: overtime begins with the 41st hour worked within one
week). A normal work week is 40 hours.

4. Compensatory Time: Time off the job with pay granted to a non-
exempt employee in lieu of cash compensation for overtime
work, which must be granted at the rate of one and one-half (1
½) hours for each overtime hour worked. The Department may
grant compensatory time to exempt employees at a rate of one to
one for overtime hours worked.

5. Workweek: A workweek consists of seven (7) consecutive 24

hour periods or 168 consecutive hours. The work week for
NMDOL begins on Saturday and ends on Friday.

II. Authorization for Overtime

A. All supervisors and managers must make every effort to avoid the use of
overtime.

B. Overtime will normally be scheduled in advance of the required work. All

overtime must be requested by the employee’s immediate supervisor.
Requests for such authorization must be in writing, form (ES-011 Rev.
2/93) and include justification, which outlines the need for the overtime
work, the cost to the Department and the requested method payment of
compensation (cash payments or comp time). Requests must be submitted
through supervisory channels with final approval by the Division Director
prior to the date of requested overtime.

C. In the event overtime work must be performed in a situation which arises

that does not allow sufficient time to request the proper prior authorization
through channels, the following provisions apply:

1. All reasonable methods of contacting the Division Director or the

Deputy Director must be exhausted.

2. In the event of the unavailability of approving authority, the

Bureau Chief may approve overtime work.

3. A follow-up request for approval should be submitted on a

timely basis to ensure that the overtime reported is in the same
pay period as it is performed.

4. The follow-up request should include a statement that a

reasonable attempt was made to contact the Division Director.
Policy Issuance No. 19, Overtime
January 16, 2006
Page 3

5. This type of overtime must be limited to emergency situations.

D. Form ES-011 (Rev. 2/93), Request and Record of Overtime, must be

submitted to the Division Director in order to request authorization and
appropriate compensation.

E. The approved overtime form reflecting total hours worked must be

submitted for payment with the Biweekly Time and Attendance Report to
the Financial Management Bureau, Payroll/Benefits Office.

F. Overtime shall be recorded and computed in thirty (30) minute

increments.

G. All supervisors and managers must maintain accurate records of overtime

for their employees.

III. Overtime Scheduling

A. Supervisors Shall:

1. Ensure that no non-exempt employee works overtime without

proper authorization. All supervisors have an obligation to stop
the work of non-exempt employees under their supervision,
which may lead to unauthorized overtime.

2. Supervisors must ensure that non-exempt employees are

completely relieved from duty during the employee’s lunch
period. No non-exempt employee will be allowed to eat lunch at
his/her workstation unless the supervisor can assure an
uninterrupted lunch period.

3. If employees work beyond their normally scheduled workday

without prior authorization, they must inform their supervisor
immediately of the excess hours worked. Non-exempt
employees who engage in unauthorized overtime work after
being told to refrain from doing so may be subject to progressive
discipline.

B. Selection Process

1. If overtime is required that is not within an employee’s regular

job description, the supervisor must offer overtime to other
employees under his/her supervision who are more experienced
and or qualified to perform the duties.
Policy Issuance No. 19, Overtime
January 16, 2006
Page 4
2. If more than one qualified employee volunteers to work
overtime, the supervisor shall assign overtime based on agency
seniority.

3. If no volunteers are available, the supervisor will designate

employees qualified to perform the overtime work based on
reverse agency seniority. Mandatory overtime shall be rotated in
a fair and equitable manner.

IV. NON-EXEMPT EMPLOYEES

A. Overtime Compensation

1. Non-exempt employees will be compensated at a rate of one and

one-half (1½) times their basic hourly rate for each hour or
portion thereof overtime worked.

2. NMDOL will compensate FLSA non-exempt employees through

cash payment unless the employee agrees, in writing, in advance,
to compensatory time off.

3. If an employee is informed that only compensatory time is

available for overtime work, the employee may refuse the
overtime assignment without penalty.

4. Compensatory time off shall be at a rate not less than one and
one half (1½) hours for each hour of employment for which
overtime compensation is required.

5. Agreement in writing to accept compensatory time off in lieu of

cash payment may be agreed upon for a period of time not to
exceed one year.

6. Any non-exempt employee who has accrued more than 240

hours (160 hours of actual time worked) of compensatory time
off, must be paid in cash payment for any additional overtime
worked. The rate of pay at the time of payment for accrued
compensatory time off shall be the current rate earned by the
employee at the time of payment.

7. The date(s) to be taken as compensatory time shall be scheduled

after discussion between the supervisor and the employee.
Supervisory approval for the use of compensatory time will be
granted in a fair and equitable manner.
Policy Issuance No. 19, Overtime
January 16, 2006
Page 5
B. Unused Compensatory Time

1. A non-exempt employee who has accrued authorized

compensatory time off shall, upon termination of employment,
be paid for the unused compensatory time at the final regular rate
received by the employee.

2. A non-exempt employee shall not be allowed to accrue more

than 240 hours (160 hours of actual time worked) of
compensatory time during a twelve-month period.

V. EXEMPT EMPLOYEES

Employees who are exempt from the overtime compensation requirements of

the FLSA fall under one of four (4) general categories.

1. Executive Exemption

• Minimum hourly rate of $11.38 per hour.

• Primary duty is management of a customarily recognized
department or a unit within a department.
• Customarily and regularly directs the work (supervises) two or
more employees.
• Has authority to hire or fire other employees or whose suggestions
and recommendations as to the hiring, firing, advancement,
promotion, or other changes in status are given particular weight.

2. Administrative Exemption

• Minimum hourly rate of $11.38 per hour.

• Primary duty of performance of office or non-manual work
directly related to the management or general business operation of
the employer.
• Primary duty includes the exercise of discretion and independent
judgment with respect to matters of significance.

3. The Computer Employee Exemption

• Minimum rate of $455 per week or $27.63 per hour.

• Primary duty of application of systems analysis techniques and
procedures, including consulting with users, to determine
hardware, software, or system functional applications.
Or
• Design, development, documentation, analysis, creation, testing, or
modification of computer systems or programs, including
Policy Issuance No. 19, Overtime
January 16, 2006
Page 6
prototypes, based in and related to user or system design
specifications.
Or
• Design documentation, testing, creation, or modification of
computer programs related to machine operating systems.
Or
• A combination of the above where the performance of which
requires the same level of skills.

4. The Professional Employee Exemption

• Minimum of $11.38 per hour.

• Primary duty of performance of work requiring knowledge of an
advanced type in a field of science or learning customarily
acquired by a prolonged course of specialized intellectual
instruction, i.e. attorneys.

An employee may be considered FLSA Exempt based on a combination of the

above options.

B. Overtime Compensation

1. FLSA Exempt employees may be compensated with

compensatory time on a straight time basis for work over forty
(40) hours per week.

2. FLSA Exempt employees who are covered by the AFSCME

contract may only accrue up to eighty (80) hours of
compensatory time. The supervisor must either schedule
compensatory time off to avoid going over the eighty hours, pay
in cash one hour for each hour worked in overtime or not
schedule the employee for overtime.

3. The date(s) to be taken as compensatory time shall be scheduled

after discussion between the supervisor and the employee.
Supervisory approval for the use of compensatory time will be
granted in a fair and equitable manner.

VI. Procedures

1. The Human Resource Bureau will evaluate each employee’s

duties to determine their status under the FLSA.

2. The Human Resources Bureau will document all overtime

designation decisions, inform employees, and maintain the
documentation in the employee’s personnel file.
Policy Issuance No. 19, Overtime
January 16, 2006
Page 7

3. Division Directors will be responsible through managers and

supervisors to authorize:

a. The need for overtime.

b. Designation of employees to work overtime.
c. Prevent unauthorized overtime.
d. Maintain fairness and equity in the use of overtime.

4. The Department will count as time worked:

a. All time spent driving a vehicle or office business outside
the employees normal work hours.
b. All time spent as a passenger in a vehicle outside an
employee’s normal work hours if the travel itinerary and
time schedule is approved by authorized supervisor.
c. Paid holiday leave and annual leave.

5. The Department will not count as time worked:

a. Time normally required to travel from home or temporary
residence to work and return.
b. Meal periods and time after normal duty hours not spent at
work.
c. Leave without pay including suspension, and/or absence
without leave.
d. Sick leave, personal leave day, administrative leave (except
voting time), military leave, educational leave, and
compensatory time off.

6. Employees who wish to appeal their overtime status must do so

in writing through the Human Resources Bureau to the State
Personnel Director. The written appeal must include the
reason(s) why the employee believes he/she is improperly
identified for overtime coverage. The appeal must include a
current PAQ (Job Description) and any other relevant
information.

The Labor Secretary reserves the right to waive portions or all of this policy as long as
there is no conflict with the FLSA, State Personnel Board Rules, or the Collective
Bargaining Agreement.

Effective Date

This policy becomes effective this date and supercedes all previous issuances.