N.Y. Civil Service Law § 134: Work week of state officers and employees for basic annual salaries; overtime compensation

§ 134. Work week of state officers and employees for basic annual

salaries; overtime compensation. 1. For all state officers and

employees, other than officers and employees of the legislature and the

judiciary and other than those who shall be excluded pursuant to the

rules and regulations hereafter mentioned, the workweek for basic annual

salary shall not be more than forty-hours; and, notwithstanding any

inconsistent provisions of law, and subject to the rules and regulations

promulgated by the director of the budget, any such state officer and

employee who is authorized or required to work more than forty hours in

any week in their regular position or title or in a position the title

of which is allocated to the same salary grade as their regular

position, shall receive overtime compensation for the hours worked in

excess of forty in each week at one and one-half times the hourly rate

of pay received by such employee in their regular position; provided,

however, that an employee not subject to the overtime provisions of the

federal "Fair Labor Standards Act of 1938" as amended by the federal

"Fair Labor Standards Amendments of 1966", being public law six hundred

one of the eighty-ninth congress, as approved September twenty-three,

nineteen hundred sixty-six, and all acts amendatory thereof and

supplementary thereto, may by written agreement with their proper

authority exchange hours of work with other employees doing similar work

in the same state institution or other state governmental unit without

overtime compensation. Upon the approval of the director of the budget a

member of the state police may be considered to have worked, for the

purpose of determining overtime compensation pursuant to the provisions

of this section, a minimum of four hours each time they are recalled to

work overtime after completing their scheduled work period and leaving

their scheduled work station or may be considered to have worked a

minimum of two hours each time they are scheduled to return and returns

to duty to work overtime for the purpose of making an appearance in

court after completing their regularly scheduled work period and leaving

their regularly scheduled work station. Upon the approval of the

director of the budget an employee may be considered to have worked, for

the purpose of determining overtime compensation pursuant to the

provisions of this section, a minimum of one-half day each time they are

recalled to work overtime after completing their scheduled work period

and leaving their scheduled work station; provided, however, that,

subject to the terms of an agreement negotiated between the state and an

employee organization pursuant to article fourteen of the civil service

law, an employee recalled to work may be considered to have worked less

than a minimum of one-half day and an employee recalled to work more

than once during a period of one-half day commencing with the onset of

the initial recall will not be entitled to more than one-half day of

overtime credit unless more than one-half day is actually worked. When

an employee shall work overtime in a position which has a title which is

allocated to a lower salary grade than the salary grade to which the

title of their regular position is allocated, they shall receive

overtime compensation at one and one-half times the hourly rate of pay

of the maximum salary of the grade of the position in which they shall

work overtime, or such maximum salary plus the additional increment or

increments, if they would be entitled to such additional increment or

increments were they then appointed to such position; provided, however,

that when such hourly rate exceeds the hourly rate of pay received by

them in their regular position, they shall receive one and one-half

times the hourly rate of their regular position. When an employee works

overtime in a position allocated to a salary grade higher than the

salary grade to which their regular position is allocated, they shall

receive overtime compensation at one and one-half times the hourly rate

of pay of the rate of compensation to which he would be entitled if they

were permanently promoted to the position in which such overtime work is

performed. Notwithstanding any other provision of law, where an

agreement between the state and an employee organization entered into

pursuant to article fourteen of this chapter so provides that such

officers and employees covered by such agreement shall receive overtime

compensation at a rate of two times the hourly rate of pay received by

such employee in their regular position for such hours of work that

qualify for such payment under the terms of such agreement.

2. Any person employed by the state in any institution under the

jurisdiction of the department of mental hygiene, the department of

corrections and community supervision, the department of health or the

department of social welfare, or in the state barge canal system, or in

the New York state school for the blind, Batavia, or in the New York

state veterans' rest camp, Mt. McGregor, whose hours of labor are

limited to forty hours per week, or six days per week, by law or

administrative regulation, who is not allowed time off by the appointing

officer, during any fiscal year commencing on or after April first,

nineteen hundred forty-six, for any holiday, pass day or vacation period

which he was eligible to receive by law or by administrative regulation,

shall, upon the approval of the superintendent or other head of such

institution or department and the director of the budget, be entitled to

compensation therefor at the hourly rate of pay received by such

employee, or shall be allowed an equivalent amount of time off in lieu

of such compensation.

3. The amount received as overtime compensation under this section

shall be regarded as salary or compensation for any of the purposes of

any pension or retirement system in which the employee receiving the

same is a member. Overtime compensation shall not be regarded as salary

or compensation for the purpose of determining the right to any increase

of salary or any salary increment on account of length of service or

otherwise. No such overtime compensation shall be construed to

constitute a promotion or to increase any compensation which a public

employee may receive pursuant to section six of chapter six hundred

eight of the laws of nineteen hundred fifty-two.

4. The director of the budget shall promulgate, and may from time to

time amend or rescind, rules and regulations for carrying into effect

the provisions of this section. Such rules and regulations, among other

things, may classify and define positions and employments for the

purposes of this section, and otherwise provide appropriate formulas for

determining overtime compensation as herein provided and provide that

for the purpose of computing overtime compensation pursuant to this

section, members of the state police in any title or individual position

or positions shall be considered to have worked a minimum of four hours

each time they are recalled to work overtime after having completed

their scheduled work period and left their scheduled work station or

shall be considered to have worked a minimum of two hours each time they

are scheduled to return and return to duty to work overtime for the

purpose of making an appearance in court in their official capacity

after having completed their scheduled work period and left their

scheduled work station; and provide that for the purpose of computing

overtime compensation pursuant to this section, employees in any title

or individual position or positions shall be considered to have worked a

minimum of one-half day each time they are recalled to work overtime

after having completed their scheduled work period and left their

scheduled work station. Such rules and regulations may exclude any title

or individual position or positions, when the nature of the duties

performed or the difficulty of maintaining adequate time controls makes

it impracticable to apply to such title or individual position or

positions the provisions of this section which prescribe a work week for

basic salary and provide for overtime compensation.

5. Notwithstanding any other provisions of law to the contrary,

employees in any title or individual position or positions ineligible to

accrue overtime credits under the rules and regulations promulgated by

the director of the budget pursuant to the provisions of this section

who are required to work beyond a normal work week may be granted

additional compensation. Such compensation shall be paid upon approval

by the director of the budget and at a rate established by the director

of the budget, provided however, that such additional compensation shall

not exceed twelve per cent of the employee's basic salary. Such

compensation shall be paid in addition to and shall not be a part of the

employee's basic annual salary, and shall not affect or impair any

performance advances or other rights or benefits to which the employee

may be entitled under the provisions of this chapter, provided however,

that any differential payable pursuant to this subdivision shall be

included as compensation for retirement purposes.

6. Notwithstanding any other provisions of law to the contrary, any

employee in any title or individual position ineligible to accrue

overtime credits under the rules and regulations promulgated by the

director of the budget pursuant to the provisions of this section who is

required to work beyond a normal workweek during a period deemed by the

director of the budget to be an extreme emergency, may be granted

additional compensation upon the approval of and at a rate established

by the director of the budget; provided, however, that such additional

compensation shall not exceed one and one-half times the hourly rate of

pay received by such employee in his regular position. Such compensation

shall be in addition to, and not be a part of, the employee's basic

annual salary and shall not affect or impair any increment or other

rights or benefits to which the employee may be entitled under the

provisions of this chapter; provided, however, that any differential

payable pursuant to this subdivision shall be included as compensation

for retirement purposes.

6-a. Notwithstanding any other provisions of law to the contrary,

employees in any title or individual position or positions, other than

those ineligible to accrue overtime credits under the rules and

regulations promulgated by the director of the budget pursuant to the

provisions of this section, who are required to be available for

immediate recall and who must be prepared to return to duty within a

limited period of time may be granted additional compensation for each

day that such employee is actually scheduled to remain and remains

available for recall; provided, however, in the event an employee

entitled to such additional compensation is actually recalled to work,

the employee will receive appropriate overtime or recall compensation in

lieu of such additional compensation, except that employees in positions

in the administrative, operational and institutional services units and

the professional, scientific and technical unit established pursuant to

article fourteen of this chapter shall receive such appropriate overtime

or recall compensation in addition to such additional compensation. Such

additional compensation shall be paid upon approval of the director of

the budget and at a rate established by the director of the budget. Such

compensation shall be paid in addition to and shall not be a part of the

employee's basic annual salary, and shall not affect or impair any

increments or other rights or benefits to which the employee may be

entitled under the provisions of this chapter; provided, however, that

any compensation payable pursuant to this subdivision shall be included

as compensation for retirement purposes. The director of the budget may

adopt such regulations as he or she may deem necessary to carry out the

provisions of this subdivision.

6-b. Notwithstanding any other provision of law to the contrary, a

member of the state police in a title or individual position, other than

a title or individual position ineligible to accrue overtime credits

under the rules and regulations promulgated by the director of the

budget pursuant to the provisions of this section, who is either in an

off-duty status or has completed a tour of duty and is directed, during

an emergency situation, to be available for immediate recall and who

must be prepared to return to duty within a limited period of time may

be granted additional compensation for each hour of such time that each

such member is actually directed to remain and remains available for

recall; provided, however, in the event the member is recalled and

compensated pursuant to the recall provisions of this section but works

less than four hours, for the purpose of computing the compensation

payable pursuant to this subdivision the length of time during which the

member remains available for recall shall be reduced by an amount of

time equal to the difference between the hours worked and four hours.

Such additional compensation shall be paid upon approval of the director

of the budget and at the rate established, subject to the terms of any

agreement negotiated between the state and an employee organization

pursuant to article fourteen of the civil service law, by the director

of the budget; provided, however, that such rate, when computed on an

annual basis, shall not exceed ten per cent of such member's basic

annual salary. Such compensation shall be paid in addition to and shall

not affect or impair any increments or other rights or benefits to which

the member may be entitled under the provisions of this chapter;

provided, however, that any compensation payable pursuant to this

subdivision shall be included as compensation for retirement purposes.

The director of the budget may adopt such regulations as he may deem

necessary to carry out the provisions of this subdivision.

6-c. Notwithstanding any other provision of law to the contrary,

employees in any title or individual position or positions who are

entitled to time off with pay on days observed as holidays by the state

as an employer and are required to work on such holidays may be granted

additional compensation for time worked on such days. Such additional

compensation shall be at a rate established, subject to the terms of any

agreement negotiated between the state and an employee organization

pursuant to article fourteen of the civil service law, by the director

of the budget. Such compensation shall be paid in addition to and shall

not be a part of the employees' basic annual salary, and shall not

affect or impair any increments or other rights or benefits to which the

employee may be entitled under the provisions of this chapter; provided,

however, that any compensation payable pursuant to this subdivision

shall be included as compensation for retirement purposes. The director

of the budget may adopt such regulations, including eligibility for such

pay, as he may deem necessary to carry out the provisions of this

subdivision, subject to the terms of any agreement negotiated between

the state and an employee organization pursuant to article fourteen of

the civil service law.

7. To the extent that appropriations heretofore or hereafter made for

personal service in any state department, division, institution or other

state agency are sufficient for the purpose, they shall be available for

the payment of overtime compensation provided under this section, after

audit by and upon the warrant of the state comptroller and the

certification prescribed by law for the payment of the regular

compensation of such employees.

7. No rule, regulation or other procedure under this section affecting

state employees shall be adopted, repealed or amended without the

approval of the director of employee relations.