FLSA FLSA FAIR LABOR STANDARDS FAIR LABOR STANDARDS

ACTACT

Federal law that governs:Federal law that governs: Minimum wage (now $6.55 per hour)Minimum wage (now $6.55 per hour) Recordkeeping responsibilitiesRecordkeeping responsibilities Youth employmentYouth employment Overtime payOvertime pay

40 hours in a workweek40 hours in a workweek

Are all workers covered under the Are all workers covered under the FLSA?FLSA? NO. Elected officials, appointees NO. Elected officials, appointees

(those who sit on boards and (those who sit on boards and commissions), some volunteers, and commissions), some volunteers, and others.others.

What the FLSA does NOT doWhat the FLSA does NOT do NoNo requirement to pay OT for work on: requirement to pay OT for work on:

HolidaysHolidays WeekendsWeekends NightsNights Regular Days of RestRegular Days of Rest

NoNo requirement to provide: requirement to provide: Vacation PayVacation Pay Sick PaySick Pay Meal BreaksMeal Breaks Rest BreaksRest Breaks Severance PaySeverance Pay

NoNo limit on # of hours worked in a week limit on # of hours worked in a week

Overtime CalculationOvertime Calculation Employer should define a 7-day Work PeriodEmployer should define a 7-day Work Period

ExampleExample -- Monday 12:00 a.m. to Sunday 11:59 -- Monday 12:00 a.m. to Sunday 11:59 p.m.p.m.

40+ hours 40+ hours actuallyactually worked = OT x 1.5 worked = OT x 1.5 M thru Th = 40 hours workedM thru Th = 40 hours worked F = F = 88 hours of holiday pay hours of holiday pay TOTALTOTAL 48 hours—ALL at straight time 48 hours—ALL at straight time

Govt’l employees—OT Pay or Comp TimeGovt’l employees—OT Pay or Comp Time (At (At employer’semployer’s discretion) discretion)

Fair Labor Standards ActFair Labor Standards Act“FLSA”“FLSA”

Some employees are exempt from FLSASome employees are exempt from FLSA ““Blue Collar” workers usually NOT exemptBlue Collar” workers usually NOT exempt ““White Collar” workers generally ARE exempt White Collar” workers generally ARE exempt ““White Collar” section amended in 2004--White Collar” section amended in 2004--

Outcome? If workers don’t meet the tests for Outcome? If workers don’t meet the tests for the exemption, they must be paid OT.the exemption, they must be paid OT.

Employees CANNOT waive their FLSA rights.Employees CANNOT waive their FLSA rights.

BASIC RULEBASIC RULE: : Everyone is HOURLY except for Everyone is HOURLY except for

exceptions.exceptions.

What Does That Mean?What Does That Mean? HOURLYHOURLY--If --If non-exemptnon-exempt and the and the

employee works more than 40 hours employee works more than 40 hours a week, OT is required.a week, OT is required.

SALARYSALARY--If --If exemptexempt, the employee is , the employee is SALARY and OT pay is NOT required.SALARY and OT pay is NOT required.

An employee may be An employee may be exemptexempt IF: IF: Paid more than $455 per week; Paid more than $455 per week;

ANDAND Fits into 1 of 6 categories:Fits into 1 of 6 categories:

Executive;Executive; Administrative;Administrative; Professional;Professional; Computer Personnel;Computer Personnel; Highly Compensated; orHighly Compensated; or Outside Salesman.Outside Salesman.

““EXECUTIVE” EMPLOYEESEXECUTIVE” EMPLOYEES

The Employee MUST:The Employee MUST:1.1. Be paid a salary of at least $455/week; Be paid a salary of at least $455/week;

ANDAND2.2. Primary dutyPrimary duty is to is to managemanage the the

business or a recognized department, business or a recognized department, division or subdivision; ANDdivision or subdivision; AND

3.3. Customarily and regularly supervises Customarily and regularly supervises and directs the work of 2 or more full-and directs the work of 2 or more full-time employees; ANDtime employees; AND

4.4. Has the authority to hire or fire other Has the authority to hire or fire other employees or is able to make these employees or is able to make these recommendations and that recommendations and that recommendation is given a recommendation is given a ““particular weightparticular weight”.--(new)”.--(new)

DEFINITIONS:

“Primary Duty” – the main, major or most important job duty.

“Manage”– manages employees, projects, and processes. Selecting employees; directing their work;

disciplining employees; determining budgets; handling complaints; evaluations; etc.

“Particular Weight” – To determine, ask: Is it part of their job duties? Is their opinion frequently relied upon?

ADMINSTRATIVE EMPLOYEESADMINSTRATIVE EMPLOYEES

The Employee MUST:The Employee MUST:1.1. Be paid a salary of at least $455/week; ANDBe paid a salary of at least $455/week; AND

2.2. Have duties that consist of office or non-Have duties that consist of office or non-manual work “directly related to manual work “directly related to management” and not part of the production management” and not part of the production process; ANDprocess; AND

3.3. Exercise discretion and independent Exercise discretion and independent judgment with respect to “matters of judgment with respect to “matters of significance”.significance”.

Examples—insurance adjusters, probation Examples—insurance adjusters, probation officers, loan originatorsofficers, loan originators

Important to Remember!Important to Remember!

Just because an employee works Just because an employee works in an office, they are not in an office, they are not automatically exempt!!!automatically exempt!!!

Not Exempt--Not Exempt-- Administrative AssistantsAdministrative Assistants Secretaries or BookkeepersSecretaries or Bookkeepers Other Office Staff That Do Not Meet Other Office Staff That Do Not Meet

the Definition of “Administrative”the Definition of “Administrative”

IMPORTANT THINGS TO REMEMBER:

1. Applies to PART-TIME employees regardless of their perceived “status”.

His job duties may make him an exempt employee, but he only works part-time. His “salary” is less than $455 per week. IS HE STILL EXEMPT? NO!!!!!

2. Employees cannot waive their FLSA rights.

Why would the employee want to do this?• Belittles the importance of their job.• Perception of “having finally made it”.• Demeaning.

Problem: Even though she agrees to it now, she may not always feel that way.

PROFESSIONAL EMPLOYEESPROFESSIONAL EMPLOYEESOrOr

The “Learned” ProfessionalThe “Learned” Professional

The Employee MUST:The Employee MUST:1.1. Be paid a salary of at least Be paid a salary of at least

$455/week; AND$455/week; AND2.2. Have an advanced knowledge gained Have an advanced knowledge gained

by “prolonged” study (doctors, by “prolonged” study (doctors, lawyers, lawyers, possibly road engineerspossibly road engineers, , etc.); ORetc.); OR

3.3. Have a talent in a recognized field of Have a talent in a recognized field of artistic or creative endeavor.artistic or creative endeavor.

OTHER EXEMPT EMPLOYEES

Highly Compensated Employees Salary over $100,000 year +

manage at least 2 employees. Outside Salespeople

If You Have Questions, AskYour Attorney

“SALARY”

SALARY = SALARYIt Does NOT = HOURLY WAGE

EXEMPT EMPLOYEES MUST BE PAID A SALARY!!!

Penalties For Non-compliance

SOL: 3 yrs for willful violations + atty fees + costs.

Willful violations = double damages (OT)

If an entire class is misclassified, they all have to be paid OT for the last 3 yrs.

MORE TIPS

For non-exempt employees: Failure to keep time records is a

violation of the FLSA. Failure to keep track of time allows a

disgruntled ex-employee to make a wage claim against you.

Have a policy that no one can work OT without written permission from supervisor.

FLSA RECORDSFLSA RECORDS

1.1. Employee's full name and social Employee's full name and social security number. security number.

2.2. Address, including zip code. Address, including zip code. 3.3. Birth date, if younger than 19. Birth date, if younger than 19. 4.4. Sex and occupation. Sex and occupation. 5.5. Time and day of week when Time and day of week when

employee's workweek begins. employee's workweek begins. 6.6. Hours worked each day. Hours worked each day. 7.7. Total hours worked each workweek. Total hours worked each workweek.

8.8. Basis on which employee's wages are Basis on which employee's wages are paid (e.g., "$9 per hour", "$440 a week", paid (e.g., "$9 per hour", "$440 a week", "piecework")"piecework")

9.9. Regular hourly pay rate. Regular hourly pay rate.

10.10. Total daily or weekly straight-time Total daily or weekly straight-time earnings. earnings.

11.11. Total overtime earnings for the workweek. Total overtime earnings for the workweek.

12.12. All additions to or deductions from the All additions to or deductions from the employee's wages. employee's wages.

13.13. Total wages paid each pay period. Total wages paid each pay period.

14.14. Date of payment and the pay period Date of payment and the pay period covered by the payment. covered by the payment.

Need not pay for normal commute to work {even when in employer’s vehicle} unless work is being performed.

One Day Trips – generally all travel is compensable EXCEPT normal commute time.

Overnight Trips: •All travel during normal work time is compensable {even days not normally worked}. Travel on public transportation outside of normal work time is not compensable.•Driving or riding at the employer’s request is compensable.•Driving done at the employee’s discretion when public transportation was offered may not be all compensable.

Travel…

Training…

Training time need not be paid if ALL of the following are met:

1) Attendance is outside of the employee’s regular working hours;

2) Attendance is truly voluntary, (no “suggesting”);3) The training is not directly related to the employee’s

job; and4) The employee does not perform any productive work

during such attendance.

Attendance at a regular school or college is the same, EXCEPT that such coursework may be directly related to the employee’s current job without being compensable.

Whether or not the employer pays for training is not related to the issue of payment for time in attendance.

Basic Rule – public sector employees may not volunteer to perform the same duties for which they are employed.

When volunteering for non-related work for an employer, there must be no coercion or time will be compensable.

When determining like-work, use broad categories, not narrowly defined.

Employees may volunteer for other public entities.

True Volunteers may be paid expenses and nominal fees without losing their volunteer status.

Exempt employees may volunteer all they wish (or don’t wish).

Volunteers

207(k) Exemption for Public Safety Employees

Allows up to 212 hours for fire and 171 hours for police in each 28-day period.

Must be “Adopted” by resolution of governing board.

Applies only to those actively engaged in public safety (not clerical or dispatch).

Not applicable to small departments (4 or less which are exempt from overtime provisions).

BEWARE the “non-paid” lunch break!