Some of the following information is pertinent only to Arizona school districts.  Please see your auditor or consultant for additional information about its applicability to your organization.

Supervisors’ liability for FLSA

Q: Can supervisors be held personally liable for FLSA violations?

A:  Yes, generally courts have held that supervisors can and will be held personally liable for pay practices that violate the FLSA. 

 

On-call Time – Work Time

Q: Is on-call time considered work time and therefore subject to overtime?

A:  Generally on-call time spent at the employer’s facility is time worked and time spent on-call at home is not considered work time. In addition, “waiting time” is considered work time particularly when the employee cannot use this time for their own benefit. 

 

Travel – Work Time

Q: Is travel considered work time and therefore subject to possible overtime regulations?

A:  The following applies to non-exempt employees.  Time spent traveling during normal work hours is considered compensable work time. Time spent in home-to-work travel by an employee in an employer-provided vehicle, or in activities performed by an employee that are incidental to the use of the vehicle for commuting, generally is not “hours worked” and, therefore, does not have to be paid.

Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly work time when it cuts across the employee’s workday. The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on nonworking days. It is not considered work time the time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.

 

Lunch and Breaks

Q: Is the employer required under federal law to provide lunch and paid breaks?

A: No, FLSA does not require an employer to provide unpaid lunch or rest periods.  However, if an employee is permitted to take an unpaid lunch period, this must be uninterrupted time.  If the employee is engaged to work during this lunch period, the employer is required to pay the employee.

 

Taxable Reimbursements

Q: When is a meal considered a taxable reimbursement?

A:  When an employee/board member receives meal reimbursement for a meal when there is no overnight stay and the employee travels less than 50 miles.  These reimbursements should be coded as an expenditure in object code 6290 and Social Security, Medicare, Federal and State taxes should be withheld.

 

Paid holidays or overtime/double time for holidays

Q:  Under FLSA, are employers required to offer paid holidays or pay time and a half or double time for working on holidays?

A:  No, these benefits are generally a matter of agreement between the employer and an employee. FLSA does not require payment of time not worked.

 

Prorated Hourly Pay

 Q:  Can the District pay hourly employees prorated?

A:  Technically, yes, this is permissible under ARS 38-351 and Attorney General Opinion I04-007.  However, the District must ensure that at no time the employee is paid for hours not yet worked.  Additionally, if an employee works over or under their contracted hours, the District must ensure they are properly calculating a dock or overtime on the employee’s actual hourly rate rather than the prorated rate.  Further, the overtime and the dock must be processed within the same pay period the hours were worked/not worked.

 

Tuition reimbursements for employees

Q: Should tuition reimbursements or educational assistance paid to employees be part of compensation?

A: Tuition reimbursements and educational assistance are excluded from an employee’s gross income as long as the reimbursements or assistance are less than $5,250 per employee during a calendar year. The excludable amount is not subject to income tax withholding or other employment taxes.  Tuition reimbursements and educational assistance are excluded from an employees’ gross income as long as certain requirements are met:

1. The employer must have a written plan;
2. The reimbursements may be for undergraduate or graduate level courses;
3. There is a dollar limitation of $5,250 per calendar year;
4. The tuition is not required to be job-related assistance; and
5. The policy must not discriminate in favor of highly compensated employees.

 

Paying for Courses for Teachers

Q: Is a school district in violation of the State constitution’s “gift of public monies” clause if it pays for courses taken by teachers?

A: According to AG Opinion I80-219, a school district may pay for courses taken by its teachers because those courses upgrade the educational programs of the district.

 

Charging unused leave pay to the federal program for a federal program employee

Q: An employee who worked and was paid from a federal program resigns with unused leave. If a government’s policy is to pay the employee for the unused leave upon termination, can the cost be charged to the federal program?

A:  Uniform Guidance 200.431(b) indicates the cost of fringe benefits in the form of regular compensation paid to employees during periods of authorized absences from the job, such as for annual leave, family-related leave, sick leave, holidays, court leave, military leave, administrative leave, and other similar benefits, are allowable if all of the following criteria are met:

• They are provided under established written leave policies
• The costs are equitably allocated to all related activities, including Federal awards; and,
• The accounting basis (cash or accrual) selected for costing each type of leave is consistently followed by the non-Federal entity or specified grouping of employees.

When a non-Federal entity uses the cash basis of accounting, the cost of leave is recognized in the period that the leave is taken and paid for.  Payments for unused leave when an employee retires or terminates employment are allowable in the year of payment.

 

Pay for a normal work day if workers sent home

Q: Due to the lack of electricity, the cafeteria of a school was closed early and the employees sent home. Can the workers be paid for the normal work day since they were sent home by no fault of their own?

A: Hourly employees must be paid for the hours actually worked or accrued leave taken. 

 

Violation of the “gift of public monies” clause

Q: Is it a violation of the “gift of public monies” clause if a school district purchases awards and other items to recognize employee achievement?

A:  The Attorney General concluded in a March 1997 opinion (I97-003) that an employee awards program recognizing achievement, length of service, and retirement provides a benefit to the public by encouraging efficiency and morale. Further, the value of this benefit would not be far exceeded by the expenditure of public funds, provided that the awards are of nominal value. Therefore a district can institute an employee recognition program and expend a nominal amount of public funds on plaques, pen and pencil sets, and other such mementos, without violating the “gift of monies” clause (Article IX, Section 7) of the Arizona Constitution.  

 

Paying for meals/food/snacks for employees

Q: We want to have all of our employees attend a beginning of the year training to go over district policies and other guidelines. We want to have a local restaurant bring in lunch so that we don’t have any delays during the training. Is this allowed? If so where can we pay this from and how do we code it?  Would this also apply if we want to offer snacks to employees?

A: Attorney General Opinion I10-003 states school districts may not provide food to staff and community members when they are not on travel status.  This would be considered a gift of public funds.  A district may consider including occasional meals and snacks in the employee contract as a fringe benefit to allow for such items without violating the gift of public funds clause. Additionally, ARS 15-342 (39) was updated in 2021 to include a provision that subject to the above noted gift of public funds and other laws pertaining to travel and funding sources, the district is permitted to provide food and beverages at school events.  It is recommended the district establish a written guideline regarding when food may be provided.

 

Paying terminated employee his/her last pay check

Q: When must a terminated employee be paid his/her last pay check?

A:  State, not federal, law regulates when you must pay employees upon their termination. In Arizona, for an involuntary termination, the employee must be paid the earlier of 7 working days or the next regular payday. However, A.R.S.15-502 allows school districts 10 days from the date of discharge to provide payment to terminated employees. For a voluntary termination, the employee can be paid on the next regular payday. 

 

Signing bonus for teachers

Q:  Due to teacher shortages, can a district offer a teacher a “signing bonus”?

A:  In the opinion of an Arizona county attorney, governing boards have great discretion in the establishment of employee benefits that are in the best interest of the district. Such a payment is not a prohibited gift of public as long as it is provided for in Governing Board policy and is available to all. Things to avoid are payment to some, but not all teachers; offers of additional amounts not approved by the Board, and increases after contracts are signed.

 

Liquidated Damages

Q: If a District includes liquidated damages in an employee’s contract and an employee breaks the contact, where should the monies be deposited?

A: The monies collected for liquidated damages should be deposited in Fund 565, Litigation Recovery.

 

Paying Coaches from Instruction Code

Q:  Is it acceptable to pay coaches from the instruction code (1000 for certified, 1900 for non-certified)?

A:  Yes, as they are ‘instructing’ the students on athletics, including after-school programs.  However, the District should not pay the athletic director or other similar position from the instruction code, as those positions may be performing administrative duties.

 

Blended Overtime

Q: I have an hourly employee that is non-exempt that wants to work as a coach. They work 36 hours per week in their normal position and expect to work 6 hours per week as a coach. Their coaching pay is at a different rate than their normal rate. Do I have to pay her overtime? If so, how do I calculate their overtime payments?

A: The federal overtime provisions are contained in the Fair Labor Standards Act (FLSA). Unless exempt, employees covered by the Act must receive overtime pay for hours worked over 40 in a workweek at a rate not less than time and one-half their regular rates of pay. The Act applies on a workweek basis. Under certain prescribed conditions, employees of State or local government agencies may receive compensatory time off, at a rate of not less than one and one-half hours for each overtime hour worked, instead of cash overtime pay. State and local government employees may accrue up to 240 hours.

In the situation of an employee who works two different jobs at two different rates of pay, the FLSA allows two different methods of computing the regular rate for overtime calculation purposes: 1) the weighted average (29. C.F.R.778-115) and 2) the regular rate associated with the job that caused the overtime to occur (29 C.F.R. 778-419). Under section 7(g)(2), an employee who performs two or more different kinds of work, for which different straight time hourly rates are established, may agree with his employer in advance of the performance of the work that he will be paid during overtime hours at a rate not less than one and one-half times the hourly non-overtime rate established for the type of work he is performing during such overtime hours.

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