2 FLSA Wage and Hour Pitfalls Presented by: Howard M. Brown Bartlett Hackett Feinberg P.C. 155 Federal Street, 9 th floor Boston, MA (617) Saleha Walsh Insource Services 148 Linden Street, 3 rd floor Wellesley, MA (781)
3 Objectives Understand the definitions of exempt and non-exempt Understand Safe Harbor Know the FLSA recordkeeping requirements for time worked for a non-exempt employee Understand minimum wage requirements Understand overtime pay requirements Understand the definition of an independent contractor Avoid penalties
4 What me worry? Litigation explosion Mandatory double damages or triple damages (Federal v. State) plus attorney s fees in private lawsuits DOL targets industries Restaurants, hotels/motels, residential construction, janitorial, moving, landscaping, home health care and retail. Massachusetts joint task force on the underground economy and misclassification
5 Exempt Employees Meet one of the FLSA exemption tests and who are paid on a fixed salary basis and not entitled to overtime. Executive Administrative Professional Computer Professional Outside sales Highly Compensated Exemption
6 Executive Paid on a salary basis at least $455 per week Primary responsibility is management of the enterprise or customarily recognized department or subdivision Customarily and regularly directs the work of two or more other employees Has the authority to hire or fire or whose suggestions and recommendations as to hiring, firing, advancement, promotion or other change of status of employees are given particular weight.
7 Executive - Who might qualify?* C-level Executives (CEO, COO, CIO, CFO, etc.) Department Head Manager Supervisor Store Manager Plant Manager Construction Project Supervisor *Title alone is insufficient to establish status
8 Executive Who doesn t qualify? Working Foreman Relief Supervisor Manager who spends only a small part of his/her time on exempt work
9 Professional Salary at least $455 per week Primary Responsibility is the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction; or Requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor
10 Professional Who might qualify?* Doctor Lawyer Engineer Accountant Teacher Insurance Claims Adjuster Registered Nurse Chef Artist Music Composer
11 Professional Who doesn t qualify? Licensed Practical Nurse Nurse s Aide Paramedic Paralegal/Legal Assistant Engineering Technician Cook
12 Administrative Salary is at least $455 per week Primary duty is performance of office or non-manual work directly related to the management or general business operations of the employer and customers Primary duty includes the exercise of discretion and independent judgment with respect to matters of significance
13 Administrative Who might qualify* Insurance Claims Adjuster Certain Financial Industry Employees Auditor, Tax Expert Team Leader on a Major Project Administrative Assistant to a Senior Executive Human Resources Manager Purchasing Agent
14 Administrative Who doesn t qualify? Administrative Assistant Legal Secretary Accounting Clerk Bookkeeper Payroll Clerk Loan Officer Inspector Human Resources Administrator/Clerk
15 Outside Sales are exempt if No salary requirement The employee s primary duty must be making sales (as defined in the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and The employee must be customarily and regularly engaged away from the employer s place or places of business May perform work incidental to sales such as deliveries, collections and reports
16 Sales Who doesn t qualify? Inside Sales are non-exempt employees eligible for overtime Unless they qualify for administrative exemption in that: The focus will be on the exercise of discretion and independent judgment with respect to matters of significance
17 Computer Employees Salary or fee basis of at least $455 per week or hourly basis at a rate not less than $27.63 per hour Apply systems analysis techniques Design, document, analyze, create or modify computer systems or programs
18 Computer Employees Who might qualify? Systems Analyst Programmer Software Engineer
19 Computer Employees Who doesn t qualify? Entry-Level Programmer Computer Manufacture or Repair CAD Operator Help Desk
20 Motor Carrier Exemption Employed by a motor carrier or motor private carrier, as defined in 49 U.S.C. Section Drivers, driver s helpers, loaders, or mechanics whose duties affect the safety of operation of motor vehicles in transportation on public highways in interstate or foreign commerce and Not covered by the small vehicle exception (gross vehicle weight of less than 10,001 pounds)
21 Highly Compensated Exemption Perform at least one of the duties of an exempt executive, administrative or professional employee Have a total annual compensation of $100,000 or more
22 Summary of Exempt Employees Executive Professional Administrative Outside Sales Not Inside Sales Computer Motor Vehicle Exemption Highly Compensated Employee - $100,000+
23 Safe Harbor Lose of exemption if facts demonstrate that the employer did not intend to pay on a salary basis (there is an actual practice of making improper deductions from exempt employees pay as opposed to an isolated or occasional event) Making improper deductions in an exempt employee s pay could jeopardize the exemption. Examples of improper deductions include: A deduction of a partial day s pay because an employee was sick and arrived late or left early and did not work a full day; A deduction of a day's pay because the employer was closed due to inclement weather; A deduction for a two-day absence due to a minor illness when the employer does not have a bona fide sick leave plan, policy or practice of providing wage replacement benefits; and A deduction for a partial day absence to attend a parent-teacher conference.
24 Safe Harbor Policy Loss of exemption exposes the employer to overtime claim going back two or three years for all employees affected by the practice. All overtime hours must be paid at time and one-half. Employers can protect themselves by implementing a Safe Harbor Policy and clearly communicating the policy prohibiting improper deductions, including a complaint mechanism; reimbursing employees for any improper deductions; and making a good faith commitment to comply in the future. The Department of Labor has found that such a policy would be considered clearly communicated if it is published in an Employment Handbook or located on the company intranet.
25 A Non-Exempt Employee is An employee who does not meet one of the FLSA s exemption tests and is covered by wage and hour laws regarding minimum wage, overtime pay and hours worked.
26 Are salaried employees always exempt from overtime? Just because an employee is paid on a salaried basis does not mean that the employee is not entitled to overtime compensation. The nature of the job and/or the type of employer dictates whether or not an employee is eligible for overtime
27 FLSA Record Keeping Requirements The FLSA requires you keep records of time worked by non-exempt employees: Time and day of week when workweek begins Hours worked each day Total hours worked each workweek Basis on which wages are paid (i.e. per hour, piecework)
28 Time Worked Records Regular hourly pay rate Total daily or weekly straight-time earnings Total overtime earnings Additions to or deductions from wages Total wages paid each pay period Date of payment and pay period covered by the payment
29 Time Worked Records Employers may use any timekeeping method they choose time clocks, manual timesheets, electronic timesheets Under FLSA, payroll records must be retained for at least three years. Records on which wages were based (time cards, timesheets, computer records) must be retained for at least two years Under Mass. law, employee is allowed to inspect his time records
30 Overtime Pay Requirements FLSA requires overtime pay at a rate of not less than one and one-half times the employees regular rate of pay after 40 hours in a workweek When an employee is subject to both state and federal overtime laws, the employee is entitled to overtime according to the higher standard (that standard that will provide the higher rate of pay)
31 Calculating Overtime 1½ x regular rate Hourly rate = regular rate Salaried non-exempt employees, divide salary by the number of hours for which the salary is intended to compensate. Except for outside sales, commissions are payments for hours worked and must be included in the regular rate Include bonuses unless purely discretionary (not earned by formula or goal)
32 Compensatory ( Comp ) Time Private sector employers must pay non-exempt employees wages equal to one and one-half times their regular hourly rate of pay for all hours worked in excess of 40 in a single workweek. They cannot provide compensatory time off instead of overtime pay.
33 Authorizing Overtime Most companies require that overtime be authorized in advance by an employee s supervisor If the employee works overtime without prior authorization, it still must be paid Unauthorized overtime is a disciplinary issue, not a compensation issue
34 Massachusetts Employers Massachusetts minimum wage is $8.00 per hour Massachusetts law specifies when employees must be paid. Under Massachusetts law, all non-exempt employees must be paid weekly or biweekly (every 2 weeks) and within 6 days of the end of the pay period during which wages were earned. Semi-monthly (twice per month) pay periods do not comply with this requirement as such is paid less frequently than every 2 weeks and does not pay wages due within 6 days of the end of a pay period Various minimum wage exceptions apply under specific circumstances to workers with disabilities, full-time students, youth under the age of 20 in their first 90 consecutive days of employment, tipped employees and studentlearners.
35 Counting Time Worked Time spent outside regular hours counts if the employer knows or has reason to believe that the employee is working Short breaks of 5 20 minutes must be counted as hours worked Bona fide meal periods of 30 minutes or more are not work time.
36 Compensable Time Meetings and Training Time spent attending lectures, meetings and training programs is counted as hours worked unless all of the following conditions are met: The meeting was held outside regular working hours and Attendance was truly voluntary And the course, lecture or meeting is not directly related to the employee s job. And the employee does no productive work during the meeting or training.
37 Compensable Time Travel Time Home-to-work travel is not work time and not compensable. Time spent in travel as part of the employee s principal activity, such as travel from one job site to another job site during the workday is work time and must be paid. When a non-exempt employee travels on a one-day assignment to another city, the time spent traveling is work time and must be paid. Travel that keeps the employee away from home overnight is work time when it cuts across the employee s workday. However, time spent traveling to an airport terminal or train station is not treated as hours worked. By contract, all time spent waiting at the terminal until arrival at the destination is compensable.
38 Compensable Time On-Call/Carrying a Pager Depends on whether the time is spent predominantly for the employer s benefit or for the employee. An employee who is required to remain on call on the employer s premises is working while on call and the time is compensable. An employee who is required to remain on call at home or carry a pager, or who is allowed to leave a message where s/he can be reached, is not working (in most cases) while on call and the time is not compensable. Additional constraints to the employee s freedom could require this time to be compensated.
39 Compensable Time Changing Clothes and Preparing for Work Time spent by employees changing clothes or preparing for work, such as washing up at the beginning or end of the workday, is considered part of an employee s principal activities whenever the changing or preparing for work is required by the nature of the worker s job. These activities would be compensable time. Exception in unionized workplaces under the terms of collective bargaining.
40 Compensable Time Compensable time spent traveling for business, attending meetings and training, on paid breaks, on on-call duty, and changing clothes and preparing for working are counted as any other time worked and may result in overtime.
41 Independent Contractors Mass. law more restrictive than Federal Three prong test under G.L. c.149, 148B To qualify as independent contractor, must: Be free from control and direction in connection with the performance of services and Perform services outside the usual course of the business of the employer and Customarily engage in an independently established trade, occupation, profession or business
42 Free from control and direction Does the company supervise the means and methods utilized in the performance of work? Per the AG advisory, activities and duties must be carried out with minimal instruction Example: an independent contractor completes the job using his or her own approach with little direction and dictates the hours that he or she will work on the job.
43 Outside usual course of the business Is the service necessary to the business of the employing unit or merely incidental? Per the AG s advisory: Violation- Drywall company classifies an individual who is installing drywall as an independent contractor. Individual installing the drywall is performing an essential part of the employer s business. Violation- Company in the business of providing motor vehicle appraisals classifies an individual appraiser as an independent contractor. Appraiser is performing an essential part of the appraisal company s business. No violation- Accounting firm hires an individual to move office furniture. Moving of furniture is incidental to the accounting firm s business.
44 Independently established trade, occupation, profession or business Is contractor capable of performing the service for anyone wishing to avail themselves of it or does the nature of the business make the contractor dependent on a single employer? Is the contractor an entrepreneur operating an independently established business? Even a franchisee can be an employee, if not truly an independent trade/business
45 Employee or independent contractor? #1 Real estate salespersons #2 FedEx ground delivery driver #3 Exotic dancer #4 Janitorial service franchisee
46 Employee or independent contractor? #1 Real estate salespersons Real estate salesperson cannot satisfy the independent contractor statute and the applicable real estate laws simultaneously. G.L.c. 149, 148B does not control and therefore a claim based on a violation of the independent contractor statute must fail. Monell v. Boston Pads, LLC, 2013 WL (Mass. Super. 7/19/13)
47 Employee or independent contractor? #2 FedEx ground delivery driver FedEx fails to raise a genuine issue of material fact as to whether plaintiffs' pickup and delivery services were performed outside of FedEx's usual course of business. Plaintiffs were employees of FedEx under Massachusetts law. Schwann v. FedEx Ground Package Sys., Inc., 2013 WL (D. Mass. 7/3/13)
48 Employee or independent contractor? #3 Exotic dancer Establishment that provides a venue for exotic dancers is in the business of providing adult entertainment. The exotic dancers perform their services in the usual course of that business. Therefore, Centerfolds has misclassified its exotic dancers as independent contractors in violation of 148B. Monteiro v. PJD Entertainment of Worcester, Inc., 2011 WL (Mass. Super. Nov. 23, 2011)
49 Employee or independent contractor? #4 Janitorial service franchisee Claimant was required to allow Coverall to negotiate contracts and pricing directly with clients, bill clients, and provide a daily cleaning plan to which the claimant was required to adhere. Claimant was compelled to rely heavily on Coverall. Growth of claimant's business inevitably expanded Coverall's clientele. Claimant s business ended once Coverall discharged her. Coverall failed to satisfy its burden of establishing that the claimant's business was independent. Coverall N. Am., Inc. v. Com'r of Div. of Unemployment Assistance, 447 Mass. 852 (2006)
50 Avoid Penalties Correctly classify all jobs as exempt or non-exempt. Have a written contract with Independent Contractors and make sure they qualify Maintain payroll records as required by law Have an up-to-date Employee Handbook Review annually Have written Job Descriptions Review annually Seek advice from experts
51 Questions Presented by: Howard M. Brown Bartlett Hackett Feinberg P.C. 155 Federal Street, 9 th floor Boston, MA (617) Saleha Walsh Insource Services 148 Linden Street, 3 rd floor Wellesley, MA (781)
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