Sec. 659.016. OVERTIME COMPENSATION FOR EMPLOYEES NOT SUBJECT TO FAIR LABOR STANDARDS ACT; REDUCTIONS IN PAY. (a) This section applies only to a state employee who is not subject to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) and who is not an employee of the legislature, including an employee of the lieutenant governor, or of a legislative agency.

(b) When the sum of hours worked plus holiday or other paid leave taken by a full-time employee during a workweek exceeds 40 hours, and not otherwise, the employee may be allowed to accrue compensatory time for the number of hours that exceeds 40 hours. When the sum of hours worked plus holiday or other paid leave taken by a part-time employee during a workweek exceeds the number of hours that the part-time employee is designated to work during the workweek, and not otherwise, the employee may be allowed to accrue compensatory time for the number of hours that exceeds the number of hours that the employee is designated to work during the workweek.

(c) An employee who is exempt as an executive, professional, or administrative employee under 29 U.S.C. Section 213(a)(1) may be allowed compensatory time off during the 12-month period following the end of the workweek in which the time that exceeds 40 hours under Subsection (b) was accrued, at a rate not to exceed one hour of compensatory time off for each hour of time that exceeds 40 hours under Subsection (b) accrued.

(d) In accordance with 29 C.F.R. Section 541.118 and subject to that section's exceptions as described by this section, an employee who is exempt as an executive, professional, or administrative employee under 29 U.S.C. Section 213(a)(1) is entitled to receive full salary for any week in which the employee performs work without regard to the number of days and hours worked. This is also subject to the general rule that an employee need not be paid for any workweek in which the employee performs no work.

(e) A deduction may be made from the salary of an employee who is exempt as an executive, professional, or administrative employee under 29 U.S.C. Section 213(a)(1) if:

(1) the employee is not at work for a full day or longer for personal reasons other than sickness, accident, jury duty, attendance as a witness at a judicial proceeding, or temporary military leave;

(2) the employee is not at work for a full day or longer because of sickness or disability, including sickness or disability covered by workers' compensation benefits, and the employee's paid sick leave or workers' compensation benefits have been exhausted;

(3) the deduction is a penalty imposed for a violation of a significant safety rule relating to prevention of serious danger in the workplace to other persons, including other employees; or

(4) in accordance with the special provisions applicable to executive, professional, or administrative employees of public agencies set forth in 29 C.F.R. Section 541.5d, the employee is not at work for less than one day for personal reasons or because of illness or injury and accrued leave is not used by the employee because:

(A) permission to use accrued leave was not sought or was denied;

(B) accrued leave has been exhausted; or

(C) the employee chooses to use leave without pay.

(f) In accordance with 29 C.F.R. Section 541.5d, a deduction from the pay of an executive, professional, or administrative employee because of an absence from work caused by a furlough related to the budget does not affect the employee's status as an employee paid on a salary basis, except for any workweek in which the furlough occurs and for which the employee's pay is accordingly reduced.

(g) If a deduction is made from an employee's salary in violation of United States Department of Labor regulations, the employee is entitled to reimbursement of the amount that should not have been deducted.

(h) An employee who is not subject to the federal Fair Labor Standards Act of 1938 under 29 U.S.C. Section 203(e)(2)(C) because the employee is a staff member, appointee, or immediate adviser of an elected officeholder may be allowed compensatory time off under the terms and conditions determined by the officeholder.

(i) Except as provided by this subsection and Subsection (j), an employee covered by this section may not be paid for any unused compensatory time. With authorization from the administrative head of the agency for which a state employee works, or that person's designee, an employee may be paid for the hours of compensatory time the employee earns for work directly related to a disaster or emergency declared by the appropriate officer of the state or federal government.

(j) With authorization from the administrative head of the agency for which an employee works, or that person's designee, an employee employed by a state mental health or mental retardation facility may be paid for any unused compensatory time if the employing agency determines that taking the compensatory time off would disrupt the normal business functions of the agency.

Added by Acts 1999, 76th Leg., ch. 279, Sec. 12, eff. Sept. 1, 1999.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 1241 (S.B. 2298), Sec. 5, eff. June 19, 2009.