Fair Labor Standard Act ( FLSA ) & Framingham Public Schools. A Presentation by the Office of Human Resources

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1 Fair Labor Standard Act ( FLSA ) & Framingham Public Schools A Presentation by the Office of Human Resources

2 What is the purpose of FLSA? Restrict child labor Establish a minimum wage Establish a 40-hour work-week Require overtime pay of "time and a half" if >40 hours per week* Recordkeeping*

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4 FLSA: Statutory Definitions Employ = to suffer or permit to work Workday = period between time on any particular day when employee commences his/her principal activity and time on that day when s/he ceases this principal activity "Work period" = "work week" 7 consecutive days "Overtime" = "time actually worked beyond a prescribed threshold" Overtime threshold = 40 hours per work-week

5 FLSA Terms Exempt Employees Who at FPS? Directors; Units A and B; some non-bargaining Salary Level: at least $47,476/year Currently: $455/week ($23,660/yr) 12/1/2016: $913/week Guaranteed salary basis Job Duties Test (to determine exemption) Executive Administrative Learned Professional exempt from all requirements (i.e minimum wage, overtime, recordkeeping) Non-Exempt Employees Paid hourly (don t get paid if don t work) >40 hours overtime Failure to record time worked employee can file claim w/ DOL Who at FPS? Units C, N, S and T; some non-bargaining

6 Non-Exempt Employees & Overtime "Time worked outside of normal schedule" may not be the same as "time worked over 40 hours in a work-week." Only the latter is "overtime" under FLSA FLSA governs only pay due for "FLSA overtime" worked Employers may use overtime and not mean FLSA overtime

7 Actual Time Worked & Overtime FLSA overtime pay for nonexempt employees is computed based on all the time the employee has actually worked in a work-week.

8 Actual Time Worked & Overtime Actual time worked = Employee's regular "on the clock" work time + "Off the clock" time spent performing job-related activities* *benefit the employer

9 Actual Time Worked & Overtime Regular shift time = "Breaks" (if there are breaks) Nursing breaks are included! Non-productive" time (i.e. time spent by receptionist reading while waiting for the phone to ring)

10 Actual Time Worked & Overtime Work-related activities that the employer suffers or permits is work time, whether on premises or not and whether "required" or not. "Unauthorized" or "unapproved" work = work Must be counted! Provided employer knows or should know it is being done and permits the employee to do it Privilege and responsibility of employer to "control the work" of its employees If employer does not wish employee to perform work prohibit the employee from doing so if it does not wish to include that work time in the required FLSA pay computations But if an employee worked w/o permission still must get paid!

11 Actual Time Worked & Overtime Not required to be be counted in computing overtime pay: Holidays Vacation time Sick leave Funeral leave

12 Comp Time VS Overtime State/local governments permitted to give employees compensatory time: >1.5 hours for each hour of overtime worked ONLY pursuant to A collective bargaining agreement*, or An agreement between employer and employee before performance of work Maximum comp time = 240 hours after 240 hours: overtime for any additional overtime hours of work Employee may use accrued comp time w/in reasonable period after requested if won t unduly disrupt operations of public agency Upon termination of employment, employer must pay off comp time.

13 Volunteers An individual cannot be an "employee" and a "volunteer" for the same position. An employer may not accept the benefit(s) of work performed by its nonexempt employees without counting the time in computing pay due under the FLSA.

14 Volunteers Example: Employee subject to the FLSA (i.e. school secretary) cannot work 40 hours/week + "volunteer" additional 10 hours/week in same job Must be paid: 1) 2) Regular wage for 1st 40 hours worked/week, AND Time and a half remaining 10 hours worked during same week* *if work was in same position

15 Volunteers FLSA does not apply to "volunteer" workers. A "volunteer" does not receive any type of compensation (in the form of money or otherwise) for his or her work. An individual who receives or expects to receive any type of compensation is not a "volunteer" under FLSA. I.e. free lunch, free tuition, etc.

16 FLSA Exemptions A quick reminder...

17 Exempt Employees: A Warning To determine which employees are exempt from the FLSA: FLSA exemptions are subject to strict construction and are narrowly construed against employer, who has burden of proving exemption. Courts focus on actual activities to determine exempt status Do not rely on resumes and job descriptions Testimony concerning day-to-day job activities

18 Executive Exemption >$913/week; & Regularly performs all of the following: Supervises >2 Management is primary duty* Genuine input into other employees job status (hiring, firing, assignments, etc.) Who at FPS? Superintendent, Assistant Superintendent, Directors *Primary duty = 50% of time

19 Administrative Exemption >$913/week; & Primary duty: office or non-manual work that Is directly related to management or general business operation of the employer or employer s customers Involves the exercise of independent judgement and discretion over matters of significance Examples: spend $, pay bills, select vendors, negotiate contracts Beyond simple clerical work Who at FPS? Principals, assistant principals, coordinators, and supervisors Hardest category to determine!

20 Administrative Exemption Select administrative office roles may qualify for administrative exemption Administrative Assistants over insurance and benefits, curriculum Administrative Assistant to the Superintendent exempt depending on their duties NOT typical secretarial/ clerical work In education, this exemption most often leads to incorrect classification of district employees and potentially law suits.

21 Professional Exemptions >$913/week; & Primary duty must be work requiring Knowledge of an advanced type Customarily acquired by long course of specialized study; Work is predominantly intellectual in character; and Consistent exercise of discretion; OR Invention, imagination or talent in a recognized field or artistic endeavor; OR Teaching in a school system/educational institution; OR Highly specialized computer knowledge* Primary duty: designing systems, hardware or software

22 Learned Professional (A Subset of Professional Exemption) >$913/week; & Primary duty must be performance of work requiring advanced knowledge Work that is Predominantly intellectual in character & Includes work requiring the consistent exercise of discretion and judgment Advanced knowledge must be In a field of science or learning; & Customarily acquired by a prolonged course of specialized intellectual instruction Who at FPS? Teachers, Guidance Counselors, Literacy/Math Coaches Caveat: If time spent in work week on activities not essentially a part of and necessarily incidental to teaching duties >20% of time worked in work week NOT exempt overtime

23 Exempt Employees If employee primarily performs non-exempt work overtime & minimum wage requirements may apply i.e. if the director of maintenance spends most of his/her time doing hands-on maintenance most likely non-exempt Exempt employees are not covered by FLSA minimum wage and overtime provisions BUT are covered by equal pay provisions Substitute teachers are exempt under FLSA. FLSA provisions do not apply to the following: Independent contractors Bona fide volunteers Trainees, such as student teachers

24 Appear As Exempt BUT Are NON-EXEMPT Computer personnel who do not Perform work requiring highly specialized knowledge in systems analysis, programming, or software engineering; Work as a systems analyst, computer programmer, software engineer or similarly skilled worker; and Consistently exercise discretion and judgment Social workers Whose college degree is not in social work and Do not perform work that is Predominantly intellectual in character and Requires the consistent exercise of discretion and judgment

25 How will the 12/1/2016 FLSA Changes Affect FPS? Quite a bit...

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27 Reclassification of Employees Many employees do NOT fit any of the exemptions so Need to be reclassified as non-exempt eligible for overtime! OR Raise salaries

28 Reclassification of Employees

29 Recordkeeping and FLSA Record-keeping requirement applies only to "non-exempt" employees Does not apply to administrators or teachers BUT many employees will be reclassified to be non-exempt. Vigilant about tracking employee hours! Certain information must be retained by the school for all "non-exempt" employees

30 Recordkeeping: What should be recorded? Day and hour when the workweek begins Total hours worked each workday and each workweek Total daily or weekly earnings Total overtime hours worked in a given workweek Hourly pay rate for any week when overtime is worked Total overtime pay for a given workweek Total wages paid each pay period Date of payment and pay period covered Deductions from or additions to wages

31 Potential FLSA Issues for FPS Comp days Potential incorrect classification of employees Administrative Assistant to the Asst. Supt. Technology Data Specialists Information System Specialist Network Technicians Data Research Specialist System Analyst School Level Tech Specialist Tech Support Theater Coordinator HR Administrative Assistant Attendance Policy Translation Services by hourly employees Update all billheads and stipends (all hours worked must be specifically indicated)

32 Potential FLSA Issues for FPS Failure to pay overtime when it is called for Taking work home (access to s) Making/receiving job-related telephone calls at home Working through lunch Working before or after regular shifts Job-related "volunteer" work Failure to pay accurate overtime pay Not including longevity into blended rates Not including bonus Educational stipends Attendance pay

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34 Change in Culture

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36 Consequences

37 Penalties "Any employer" who violates minimum wage or unpaid overtime compensation laws may be liable for liquidated damages, which means double the damages. Backpay (going back 3 years) Double backpay for failing to pay overtime Fines (minimum of $200,000) Attorney s fees and court costs Statute of limitations 2 years Wilful violation 3 years statute of limitations and potential imprisonment

38 Next Steps As Dec. 1, 2016 Approaches...

39 Any Questions? Contact, the Office of Human Resources!