This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Tue, Feb 27, 2024 at 8:30 PM by lpoole.
Representative Karianne Lisonbee proposes the following substitute bill:


1     
LAW ENFORCEMENT EMPLOYEE OVERTIME AMENDMENTS

2     
2024 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Karianne Lisonbee

5     
Senate Sponsor: Derrin R. Owens

6     

7     LONG TITLE
8     General Description:
9          This bill addresses overtime pay for certain state and local employees.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     subject to certain exceptions, modifies provisions relating to the number of hours
14     that a state employee engaged in law enforcement activities must work to qualify for
15     overtime pay;
16          ▸     authorizes a city or county employing an individual engaged in law enforcement
17     activities to compensate that individual for overtime pay in accordance with the
18     modification described above; and
19          ▸     makes technical and conforming changes.
20     Money Appropriated in this Bill:
21          None
22     Other Special Clauses:
23          This bill provides a special effective date.
24     Utah Code Sections Affected:
25     AMENDS:
26          63A-17-502, as last amended by Laws of Utah 2022, Chapter 447
27     ENACTS:
28          10-3-1109.5, Utah Code Annotated 1953
29          17-33-11.7, Utah Code Annotated 1953
30     

31     Be it enacted by the Legislature of the state of Utah:
32          Section 1. Section 10-3-1109.5 is enacted to read:
33          10-3-1109.5. Overtime for law enforcement personnel.
34          (1) As used in this section:
35          (a) "Nonexempt employee" means a municipal employee who is nonexempt under the
36     requirements of the Fair Labor Standards Act of 1978, 29 U.S.C. Sec. 201 et seq.
37          (b) "Overtime" means hours worked in excess of a nonexempt employee's work period.
38          (c) "Regular hourly rate" means the hourly rate of pay a nonexempt employee receives
39     for hours worked during a work period.
40          (d) "Work period" means the maximum number of hours, within a specified number of
41     consecutive days, that a nonexempt employee may work before the nonexempt employee is
42     compensated for overtime.
43          (2) The governing body of a municipality that employs a nonexempt employee engaged
44     in law enforcement activities may, except as otherwise required by a contract or a collective
45     bargaining agreement, enact an ordinance or pass a resolution that:
46          (a) designates a work period for the nonexempt employee that is the same as, or
47     equivalent to, a work period described in Subsection 63A-17-502(2); and
48          (b) compensates the nonexempt employee for overtime at a rate of one and one-half
49     times the nonexempt employee's regular hourly rate.
50          Section 2. Section 17-33-11.7 is enacted to read:
51          17-33-11.7. Overtime for law enforcement personnel -- Exception.
52          (1) As used in this section:
53          (a) "Nonexempt employee" means an county employee who is nonexempt under the
54     requirements of the Fair Labor Standards Act of 1978, 29 U.S.C. Sec. 201 et seq.
55          (b) "Overtime" means hours worked in excess of a nonexempt employee's work period.
56          (c) "Regular hourly rate" means the hourly rate of pay a nonexempt employee receives
57     for hours worked during a work period.
58          (d) "Work period" means the maximum number of hours, within a specified number of
59     consecutive days, that a nonexempt employee may work before the nonexempt employee is
60     compensated for overtime.
61          (2) This section does not apply to a county subject to Chapter 30a, Peace Officer Merit
62     System in Counties of the First Class Act.
63          (3) The legislative body of a county that employs a nonexempt employee engaged in
64     law enforcement activities may, except as otherwise required by a contract or a collective
65     bargaining agreement, enact an ordinance or pass a resolution that:
66          (a) designates a work period for the nonexempt employee that is the same as, or
67     equivalent to, a work period described in Subsection 63A-17-502(2); and
68          (b) compensates the nonexempt employee for overtime at a rate of one and one-half
69     times the nonexempt employee's regular hourly rate.
70          Section 3. Section 63A-17-502 is amended to read:
71          63A-17-502. Overtime policies for state employees.
72          (1) As used in this section:
73          (a) "Accrued overtime hours" means:
74          (i) for a nonexempt [employees] employee, overtime hours earned during a fiscal year
75     that, at the end of the fiscal year, have not been paid and have not been taken as time off by the
76     nonexempt state employee who accrued them; and
77          (ii) for an exempt [employees] employee, overtime hours earned during an overtime
78     year.
79          (b) "Appointed official" means:
80          (i) each department executive director and deputy director, each division director, and
81     each member of a board or commission; and
82          (ii) any other person employed by a department who is appointed by, or whose
83     appointment is required by law to be approved by, the governor and who:
84          (A) is paid a salary by the state; and
85          (B) who exercises managerial, policy-making, or advisory responsibility.
86          (c) "Department" means, except as otherwise provided in this section, the Department
87     of Government Operations, the Department of Corrections, the Department of Financial
88     Institutions, the Department of Alcoholic Beverage Services, the Insurance Department, the
89     Public Service Commission, the Labor Commission, the Department of Agriculture and Food,
90     the Department of Human Services, the Department of Natural Resources, the Department of
91     Transportation, the Department of Commerce, the Department of Workforce Services, the State
92     Tax Commission, the Department of Cultural and Community Engagement, the Department of
93     Health, the National Guard, the Department of Environmental Quality, the Department of
94     Public Safety, the Commission on Criminal and Juvenile Justice, all merit employees except
95     attorneys in the Office of the Attorney General, merit employees in the Office of the State
96     Treasurer, merit employees in the Office of the State Auditor, Department of Veterans and
97     Military Affairs, and the Board of Pardons and Parole.
98          (d) "Elected official" means any person who is an employee of the state because the
99     person was elected by the registered voters of Utah to a position in state government.
100          (e) "Exempt employee" means a state employee who is exempt as defined by the [Fair
101     Labor Standards Act of 1978, 29 U.S.C. Sec. 201 et seq] FLSA.
102          (f) "FLSA" means the Fair Labor Standards Act of 1978, 29 U.S.C. Sec. 201 et seq.
103          (g) "FLSA agreement" means the agreement authorized by the [Fair Labor Standards
104     Act of 1978, 29 U.S.C. Sec. 201 et seq.,] FLSA by which a nonexempt employee elects the
105     form of compensation the nonexempt employee will receive for overtime.
106          (h) "Nonexempt employee" means a state employee who is nonexempt as defined by
107     the division applying FLSA requirements.
108          (i) "Overtime" means actual time worked in excess of [the] an employee's defined work
109     period.
110          (j) "Overtime year" means the year determined by a department under Subsection
111     [(4)(b)] (5)(b) at the end of which an exempt employee's accrued overtime lapses.
112          (k) "State employee" means every person employed by a department who is not:
113          (i) an appointed official;
114          (ii) an elected official; or
115          (iii) a member of a board or commission who is paid only for per diem or travel
116     expenses.
117          (l) "Uniform annual date" means the date when an exempt employee's accrued
118     overtime lapses.
119          [(m) "Work period" means:]
120          [(i) for all nonexempt employees, except law enforcement and hospital employees, a
121     consecutive seven day 24 hour work period of 40 hours;]
122          [(ii) for all exempt employees, a 14 day, 80 hour payroll cycle; and]
123          [(iii) for nonexempt law enforcement and hospital employees, the period established by
124     each department by rule for those employees according to the requirements of the Fair Labor
125     Standards Act of 1978, 29 U.S.C. Sec. 201 et seq.]
126          (m) "Work period" means:
127          (i) for a nonexempt employee, except a nonexempt law enforcement or hospital
128     employee, a consecutive seven day, 24 hour work period of 40 hours;
129          (ii) for an exempt employee, a 14 day, 80 hour payroll cycle;
130          (iii) for a nonexempt hospital employee, the period the division establishes by rule
131     according to the requirements of the FLSA; or
132          (iv) for a nonexempt law enforcement employee Ŝ→ as defined in the FLSA ←Ŝ :
133          (A) who is employed by the Department of Natural Resources, the period the division
134     establishes by rule according to the requirements of the FLSA; or
135          (B) who is employed by a department other than the Department of Natural Resources,
136     the period the division establishes by rule in accordance with Subsection (2).
137          (2) Except for the Department of Natural Resources, the division shall require each
138     department employing a nonexempt law enforcement employee to designate one of the
139     following work periods applicable to that employee:
140          (a) 80 hours in a 14 consecutive day payroll cycle; or
141          (b) 160 hours in a 28 consecutive day payroll cycle.
142          [(2)] (3) Each department shall compensate each state employee who works overtime
143     by complying with the requirements of this section.
144          [(3)] (4) (a) Each department shall negotiate and obtain a signed FLSA agreement from
145     each nonexempt employee.
146          (b) In the FLSA agreement, the nonexempt employee shall elect either to be
147     compensated for overtime by:
148          (i) taking time off work at the rate of one and one-half hour off for each overtime hour
149     worked; or
150          (ii) being paid for the overtime worked at the rate of one and one-half times the rate per
151     hour that the state employee receives for nonovertime work.
152          (c) [Any] A nonexempt employee who elects to take time off under this Subsection
153     [(3)] (4) shall be paid for any overtime worked in excess of the cap established by the division.
154          (d) Before working any overtime, [each] a nonexempt employee shall obtain
155     authorization to work overtime from the employee's immediate supervisor.
156          (e) Each department shall:
157          (i) for [employees who elect] an employee who elects to be compensated with time off
158     for overtime, allow overtime earned during a fiscal year to be accumulated; and
159          (ii) for [employees who elect] an employee who elects to be paid for overtime worked,
160     pay them for overtime worked in the paycheck for the pay period in which the employee
161     worked the overtime.
162          (f) If a department pays a nonexempt employee for overtime, that department shall
163     charge that payment to that department's budget.
164          (g) At the end of each fiscal year, the Division of Finance shall total all the accrued
165     overtime hours for nonexempt employees and charge that total against the appropriate fund or
166     subfund.
167          [(4)] (5) (a) (i) Except as provided in Subsection [(4)(a)(ii)] (5)(a)(ii), each department
168     shall compensate [exempt employees who work] each exempt employee who works overtime
169     by granting [them] the employee time off at the rate of one hour off for each hour of overtime
170     worked.
171          (ii) The director of the division may grant limited exceptions to this requirement,
172     where work circumstances dictate, by authorizing a department to pay [employees] an
173     employee for overtime worked at the rate per hour that the employee receives for nonovertime
174     work, if that department has funds available.
175          (b) (i) Each department shall:
176          (A) establish in its written human resource policies a uniform annual date for each
177     division that is at the end of any pay period; and
178          (B) communicate the uniform annual date to its employees.
179          (ii) If any department fails to establish a uniform annual date as required by this
180     Subsection [(4)] (5), the director of the division, in conjunction with the director of the
181     Division of Finance, shall establish the date for that department.
182          [(c) (i) Any overtime earned under this Subsection (4) is not an entitlement, is not a
183     benefit, and is not a vested right.]
184          [(ii) A court may not construe the overtime for exempt employees authorized by this
185     Subsection (4) as an entitlement, a benefit, or as a vested right.]
186          [(d)] (c) The overtime authorized for an exempt employee under this Subsection (5) is
187     not an entitlement, a benefit, or a vested right.
188          (d) At the end of the overtime year, upon transfer to another department at any time,
189     and upon termination, retirement, or other situations where the employee will not return to
190     work before the end of the overtime year:
191          (i) any of an exempt employee's overtime that is more than the maximum established
192     by division rule lapses; and
193          (ii) unless authorized by the director of the division under Subsection [(4)(a)(ii)]
194     (5)(a)(ii), a department may not compensate the exempt employee for that lapsed overtime by
195     paying the employee for the overtime or by granting the employee time off for the lapsed
196     overtime.
197          (e) Before working any overtime, each exempt employee shall obtain authorization to
198     work overtime from the exempt employee's immediate supervisor.
199          (f) If a department pays an exempt employee for overtime under authorization from the
200     director of the division, that department shall charge that payment to that department's budget
201     in the pay period earned.
202          [(5)] (6) The division shall:
203          (a) ensure that the provisions of the FLSA and this section are implemented throughout
204     state government;
205          (b) determine, for each state employee, whether [that] the employee is exempt,
206     nonexempt, law enforcement, or has some other status under the FLSA;
207          (c) in coordination with modifications to the systems operated by the Division of
208     Finance, make rules, in accordance with Title 63G, Chapter 3, Utah Administrative
209     Rulemaking Act:
210          (i) establishing procedures for recording overtime worked that comply with FLSA
211     requirements;
212          (ii) establishing requirements governing overtime worked while traveling and
213     procedures for recording that overtime that comply with FLSA requirements;
214          (iii) establishing requirements governing overtime worked if the employee is "on call"
215     and procedures for recording that overtime that comply with FLSA requirements;
216          (iv) establishing requirements governing overtime worked while an employee is being
217     trained and procedures for recording that overtime that comply with FLSA requirements;
218          (v) subject to the FLSA and Subsection (2), establishing the maximum number of
219     hours that a nonexempt employee may accrue before a department is required to pay the
220     employee for the overtime worked;
221          (vi) subject to the FLSA, establishing the maximum number of overtime hours for an
222     exempt employee that do not lapse; and
223          (vii) establishing procedures for adjudicating appeals of [any FLSA determinations] an
224     FLSA determination made by the division as required by this section;
225          (d) monitor departments for compliance with the FLSA; and
226          (e) recommend to the Legislature and the governor any statutory changes necessary
227     because of federal government action.
228          [(6)] (7) (a) In coordination with the procedures for recording overtime worked
229     established in rule by the division, the Division of Finance shall modify its payroll and human
230     resource systems to accommodate those procedures.
231          (b) Notwithstanding the procedures and requirements of Title 63G, Chapter 4,
232     Administrative Procedures Act, Section 63A-17-602, and Section 67-19a-301, [any] an
233     employee who is aggrieved by the FLSA designation made by the division as required by this
234     section may appeal that determination to the director of the division by following the
235     procedures and requirements established in division rule.
236          (c) Upon receipt of an appeal under this section, the director shall notify the executive
237     director of the employee's department that the appeal has been filed.
238          (d) If the employee is aggrieved by the decision of the director, the employee shall
239     appeal that determination to the Department of Labor, Wage and Hour Division, according to
240     the procedures and requirements of federal law.
241          Section 4. Effective date.
242          This bill takes effect on July 1, 2024.