N.Y. Comp. Codes R. & Regs. tit. 9 § 135.2

Current through Register Vol. 46, No. 45, November 2, 2024

Section 135.2 - Exclusions

Officers and employees in positions or types of positions meeting the following criteria shall not be eligible to earn overtime pay:

(a) The head of every department, institution or other State agency and the head and members of boards and commissions.

(b) Deputies of principal executive officers.

(c) Administrative and staff personnel. This group includes those officers and employees in grade 15 and above and officers and employees in unallocated positions paid a salary equal to or in excess of that paid for the minimum of grade 15:

(1) whose primary duty consists of the management of a bureau, division or major subdivision of a department or agency; or

(2) who are in charge of independent offices or physically separated branches; or

(3) whose primary duty consists of administrative or staff work not performed under close and proximate supervision.

(d) Professional and technical personnel. This group includes those officers and employees in grade 15 and above and officers and employees in unallocated positions paid a salary equal to or in excess of that paid for the minimum of grade 15:

(1) whose positions require, as a minimum qualification, four or more years of study beyond a high school education, or equivalent experience, in a specialized intellectual field, as distinguished from apprenticeship or training in the performance of routine mental, manual or physical processes; and

(2) whose primary duty consists of the performance of work of such a character that the output produced or the results accomplished cannot be standardized in relation to a given period of time; and

(3) whose work is not performed under close and proximate supervision.

(e) Personnel whose duties involve:

(1) a close working relationship with an individual executive; and

(2) work which is exclusively, or almost exclusively, for such executive; and

(3) a work schedule which depends on the personal needs and specific directions of such executive.

(f) All positions for which time records showing actual hours worked each day are not required to be maintained.

(g) All positions, including field positions, in which the incumbents exercise personal discretion in the scheduling of their hours worked, whether or not the number of hours worked exceeds the basic workweek. This group includes any officer and employee:

(1) whose hours of work are controlled by him or the work situation, rather than subject to the direction and control of a supervisor; or

(2) who, subject to appropriate clearance with his supervisor, has substantial freedom in planning his work assignments to make adjustments in the schedule for his basic workweek to meet work requirements efficiently.

(h) All full-time officers and employees whose normal work schedule does not consist of five working days and two days off in a workweek as defined under subdivision (a) of section 135.1.

(i) All part-time personnel. This group includes any officer and employee:

(1) whose normal workweek is less than the basic workweek; or

(2) who is temporarily employed as a special consultant either on a per diem or any other basis.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 135.2