§ 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\nsalaries; overtime compensation. 1. For all state officers and\nemployees, other than officers and employees of the legislature and the\njudiciary and other than those who shall be excluded pursuant to the\nrules and regulations hereafter mentioned, the workweek for basic annual\nsalary shall not be more than forty-hours; and, notwithstanding any\ninconsistent provisions of law, and subject to the rules and regulations\npromulgated by the director of the budget, any such state officer and\nemployee who is authorized or required to work more than forty hours in\nany week in their regular position or title or in a position the title\nof which is allocated to the same salary grade as their regular\nposition, shall receive overtime compensation for the hours worked in\nexcess of forty in each week at one and one-half times the hourly rate\nof pay received by such employee in their regular position; provided,\nhowever, that an employee not subject to the overtime provisions of the\nfederal "Fair Labor Standards Act of 1938" as amended by the federal\n"Fair Labor Standards Amendments of 1966", being public law six hundred\none of the eighty-ninth congress, as approved September twenty-three,\nnineteen hundred sixty-six, and all acts amendatory thereof and\nsupplementary thereto, may by written agreement with their proper\nauthority exchange hours of work with other employees doing similar work\nin the same state institution or other state governmental unit without\novertime compensation. Upon the approval of the director of the budget a\nmember of the state police may be considered to have worked, for the\npurpose of determining overtime compensation pursuant to the provisions\nof this section, a minimum of four hours each time they are recalled to\nwork overtime after completing their scheduled work period and leaving\ntheir scheduled work station or may be considered to have worked a\nminimum of two hours each time they are scheduled to return and returns\nto duty to work overtime for the purpose of making an appearance in\ncourt after completing their regularly scheduled work period and leaving\ntheir regularly scheduled work station. Upon the approval of the\ndirector of the budget an employee may be considered to have worked, for\nthe purpose of determining overtime compensation pursuant to the\nprovisions of this section, a minimum of one-half day each time they are\nrecalled to work overtime after completing their scheduled work period\nand leaving their scheduled work station; provided, however, that,\nsubject to the terms of an agreement negotiated between the state and an\nemployee organization pursuant to article fourteen of the civil service\nlaw, an employee recalled to work may be considered to have worked less\nthan a minimum of one-half day and an employee recalled to work more\nthan once during a period of one-half day commencing with the onset of\nthe initial recall will not be entitled to more than one-half day of\novertime credit unless more than one-half day is actually worked. When\nan employee shall work overtime in a position which has a title which is\nallocated to a lower salary grade than the salary grade to which the\ntitle of their regular position is allocated, they shall receive\novertime compensation at one and one-half times the hourly rate of pay\nof the maximum salary of the grade of the position in which they shall\nwork overtime, or such maximum salary plus the additional increment or\nincrements, if they would be entitled to such additional increment or\nincrements were they then appointed to such position; provided, however,\nthat when such hourly rate exceeds the hourly rate of pay received by\nthem in their regular position, they shall receive one and one-half\ntimes the hourly rate of their regular position. When an employee works\novertime in a position allocated to a salary grade higher than the\nsalary grade to which their regular position is allocated, they shall\nreceive overtime compensation at one and one-half times the hourly rate\nof pay of the rate of compensation to which he would be entitled if they\nwere permanently promoted to the position in which such overtime work is\nperformed. Notwithstanding any other provision of law, where an\nagreement between the state and an employee organization entered into\npursuant to article fourteen of this chapter so provides that such\nofficers and employees covered by such agreement shall receive overtime\ncompensation at a rate of two times the hourly rate of pay received by\nsuch employee in their regular position for such hours of work that\nqualify for such payment under the terms of such agreement.\n 2. Any person employed by the state in any institution under the\njurisdiction of the department of mental hygiene, the department of\ncorrections and community supervision, the department of health or the\ndepartment of social welfare, or in the state barge canal system, or in\nthe New York state school for the blind, Batavia, or in the New York\nstate veterans' rest camp, Mt. McGregor, whose hours of labor are\nlimited to forty hours per week, or six days per week, by law or\nadministrative regulation, who is not allowed time off by the appointing\nofficer, during any fiscal year commencing on or after April first,\nnineteen hundred forty-six, for any holiday, pass day or vacation period\nwhich he was eligible to receive by law or by administrative regulation,\nshall, upon the approval of the superintendent or other head of such\ninstitution or department and the director of the budget, be entitled to\ncompensation therefor at the hourly rate of pay received by such\nemployee, or shall be allowed an equivalent amount of time off in lieu\nof such compensation.\n 3. The amount received as overtime compensation under this section\nshall be regarded as salary or compensation for any of the purposes of\nany pension or retirement system in which the employee receiving the\nsame is a member. Overtime compensation shall not be regarded as salary\nor compensation for the purpose of determining the right to any increase\nof salary or any salary increment on account of length of service or\notherwise. No such overtime compensation shall be construed to\nconstitute a promotion or to increase any compensation which a public\nemployee may receive pursuant to section six of chapter six hundred\neight of the laws of nineteen hundred fifty-two.\n 4. The director of the budget shall promulgate, and may from time to\ntime amend or rescind, rules and regulations for carrying into effect\nthe provisions of this section. Such rules and regulations, among other\nthings, may classify and define positions and employments for the\npurposes of this section, and otherwise provide appropriate formulas for\ndetermining overtime compensation as herein provided and provide that\nfor the purpose of computing overtime compensation pursuant to this\nsection, members of the state police in any title or individual position\nor positions shall be considered to have worked a minimum of four hours\neach time they are recalled to work overtime after having completed\ntheir scheduled work period and left their scheduled work station or\nshall be considered to have worked a minimum of two hours each time they\nare scheduled to return and return to duty to work overtime for the\npurpose of making an appearance in court in their official capacity\nafter having completed their scheduled work period and left their\nscheduled work station; and provide that for the purpose of computing\novertime compensation pursuant to this section, employees in any title\nor individual position or positions shall be considered to have worked a\nminimum of one-half day each time they are recalled to work overtime\nafter having completed their scheduled work period and left their\nscheduled work station. Such rules and regulations may exclude any title\nor individual position or positions, when the nature of the duties\nperformed or the difficulty of maintaining adequate time controls makes\nit impracticable to apply to such title or individual position or\npositions the provisions of this section which prescribe a work week for\nbasic salary and provide for overtime compensation.\n 5. Notwithstanding any other provisions of law to the contrary,\nemployees in any title or individual position or positions ineligible to\naccrue overtime credits under the rules and regulations promulgated by\nthe director of the budget pursuant to the provisions of this section\nwho are required to work beyond a normal work week may be granted\nadditional compensation. Such compensation shall be paid upon approval\nby the director of the budget and at a rate established by the director\nof the budget, provided however, that such additional compensation shall\nnot exceed twelve per cent of the employee's basic salary. Such\ncompensation shall be paid in addition to and shall not be a part of the\nemployee's basic annual salary, and shall not affect or impair any\nperformance advances or other rights or benefits to which the employee\nmay be entitled under the provisions of this chapter, provided however,\nthat any differential payable pursuant to this subdivision shall be\nincluded as compensation for retirement purposes.\n 6. Notwithstanding any other provisions of law to the contrary, any\nemployee in any title or individual position ineligible to accrue\novertime credits under the rules and regulations promulgated by the\ndirector of the budget pursuant to the provisions of this section who is\nrequired to work beyond a normal workweek during a period deemed by the\ndirector of the budget to be an extreme emergency, may be granted\nadditional compensation upon the approval of and at a rate established\nby the director of the budget; provided, however, that such additional\ncompensation shall not exceed one and one-half times the hourly rate of\npay received by such employee in his regular position. Such compensation\nshall be in addition to, and not be a part of, the employee's basic\nannual salary and shall not affect or impair any increment or other\nrights or benefits to which the employee may be entitled under the\nprovisions of this chapter; provided, however, that any differential\npayable pursuant to this subdivision shall be included as compensation\nfor retirement purposes.\n 6-a. Notwithstanding any other provisions of law to the contrary,\nemployees in any title or individual position or positions, other than\nthose ineligible to accrue overtime credits under the rules and\nregulations promulgated by the director of the budget pursuant to the\nprovisions of this section, who are required to be available for\nimmediate recall and who must be prepared to return to duty within a\nlimited period of time may be granted additional compensation for each\nday that such employee is actually scheduled to remain and remains\navailable for recall; provided, however, in the event an employee\nentitled to such additional compensation is actually recalled to work,\nthe employee will receive appropriate overtime or recall compensation in\nlieu of such additional compensation, except that employees in positions\nin the administrative, operational and institutional services units and\nthe professional, scientific and technical unit established pursuant to\narticle fourteen of this chapter shall receive such appropriate overtime\nor recall compensation in addition to such additional compensation. Such\nadditional compensation shall be paid upon approval of the director of\nthe budget and at a rate established by the director of the budget. Such\ncompensation shall be paid in addition to and shall not be a part of the\nemployee's basic annual salary, and shall not affect or impair any\nincrements or other rights or benefits to which the employee may be\nentitled under the provisions of this chapter; provided, however, that\nany compensation payable pursuant to this subdivision shall be included\nas compensation for retirement purposes. The director of the budget may\nadopt such regulations as he or she may deem necessary to carry out the\nprovisions of this subdivision.\n 6-b. Notwithstanding any other provision of law to the contrary, a\nmember of the state police in a title or individual position, other than\na title or individual position ineligible to accrue overtime credits\nunder the rules and regulations promulgated by the director of the\nbudget pursuant to the provisions of this section, who is either in an\noff-duty status or has completed a tour of duty and is directed, during\nan emergency situation, to be available for immediate recall and who\nmust be prepared to return to duty within a limited period of time may\nbe granted additional compensation for each hour of such time that each\nsuch member is actually directed to remain and remains available for\nrecall; provided, however, in the event the member is recalled and\ncompensated pursuant to the recall provisions of this section but works\nless than four hours, for the purpose of computing the compensation\npayable pursuant to this subdivision the length of time during which the\nmember remains available for recall shall be reduced by an amount of\ntime equal to the difference between the hours worked and four hours.\nSuch additional compensation shall be paid upon approval of the director\nof the budget and at the rate established, subject to the terms of any\nagreement negotiated between the state and an employee organization\npursuant to article fourteen of the civil service law, by the director\nof the budget; provided, however, that such rate, when computed on an\nannual basis, shall not exceed ten per cent of such member's basic\nannual salary. Such compensation shall be paid in addition to and shall\nnot affect or impair any increments or other rights or benefits to which\nthe member may be entitled under the provisions of this chapter;\nprovided, however, that any compensation payable pursuant to this\nsubdivision shall be included as compensation for retirement purposes.\nThe director of the budget may adopt such regulations as he may deem\nnecessary to carry out the provisions of this subdivision.\n 6-c. Notwithstanding any other provision of law to the contrary,\nemployees in any title or individual position or positions who are\nentitled to time off with pay on days observed as holidays by the state\nas an employer and are required to work on such holidays may be granted\nadditional compensation for time worked on such days. Such additional\ncompensation shall be at a rate established, subject to the terms of any\nagreement negotiated between the state and an employee organization\npursuant to article fourteen of the civil service law, by the director\nof the budget. Such compensation shall be paid in addition to and shall\nnot be a part of the employees' basic annual salary, and shall not\naffect or impair any increments or other rights or benefits to which the\nemployee may be entitled under the provisions of this chapter; provided,\nhowever, that any compensation payable pursuant to this subdivision\nshall be included as compensation for retirement purposes. The director\nof the budget may adopt such regulations, including eligibility for such\npay, as he may deem necessary to carry out the provisions of this\nsubdivision, subject to the terms of any agreement negotiated between\nthe state and an employee organization pursuant to article fourteen of\nthe civil service law.\n 7. To the extent that appropriations heretofore or hereafter made for\npersonal service in any state department, division, institution or other\nstate agency are sufficient for the purpose, they shall be available for\nthe payment of overtime compensation provided under this section, after\naudit by and upon the warrant of the state comptroller and the\ncertification prescribed by law for the payment of the regular\ncompensation of such employees.\n 7. No rule, regulation or other procedure under this section affecting\nstate employees shall be adopted, repealed or amended without the\napproval of the director of employee relations.\n