CORSA HR Helpline: What Issues Are Trending Fair Labor Standards Act
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1 CORSA HR Helpline: What Issues Are Trending Fair Labor Standards Act Jeffrey A. Stankunas, Esq. Isaac, Wiles, Burkholder & Teetor, LLC office
2 Fair Labor Standards Act of 1938 Minimum Wage Overtime Child Labor Laws Recordkeeping
3 Minimum Wage Federal Minimum Wage Law 1938 $ $7.25 Ohio s Minimum Wage Law 2017 $8.15
4 Overtime 1 ½ time Regular Rate for each hour worked over 40 in a work week Work week = 7 consecutive day period designated by the employer Fire Protection and Law Enforcement (Section 7(k)) Public Employer may establish 7 to 28 day consecutive work week 14-day pay period, overtime is not owed until the employee s hours have exceeded 86 hours per pay period
5 Hours Worked Suffered or Permitted Even if not requested of the employee Voluntary work is generally compensable! Public employees can volunteer if their services are not the same type of services they are employed to perform (ex. city police officer who volunteers as a part-time referee in basketball league sponsored by city) All time during which an employee is required to be on employer s premises, on duty, or at a prescribed work site Actual hours worked does not include leave time
6 Exempt Employees White collar employees Executive Administrative Professional Outside Sales Highly Compensated Exemptions are NARROWLY CONSTRUED against the employer! Employers must demonstrate employees fit plainly and unmistakably within the exemption terms
7 Exempt Test Salary Level (Pre-12/1/16 and under current nationwide injunction) At least $455 per week ($23, annually) Except certified doctors, lawyers, teachers, outside sales Salary Basis An employee of a public agency who otherwise meets the salary basis requirements will not be disqualified: so long as they are paid according to a pay system established by statute under which the employee accrues personal leave and sick leave and which requires the employee s pay to be reduced or such employee to be placed on leave without pay for absences for personal reasons or because of illness or injury of less than one work-day when accrued leave is not used by an employee because: (1) permission for its use has not been sought or has been sought and denied; (2) accrued leave has been exhausted; or (3) the employee chooses to use leave without pay.
8 Salary Basis Guaranteed minimum pay for any week in which employee performs work Do not have to pay employee for a week in which he performs no work Generally, salaried employees cannot have wages reduced based on quality or quantity of work performed
9 Salary Basis Permitted Deductions: Penalties for infractions of safety rules of major significance Disciplinary suspensions of one or more full days imposed in good faith for misconduct FMLA (full or partial days)
10 Effect of Improper Deductions Overtime exemption is lost: For the employee; For all employees working in the same classification for the same manager responsible for the improper deductions.
11 Executive Exemption Primary duty is comprised of management of the enterprise or of a customarily recognized department of division; Customarily and regularly directs the work of 2 or more full time employees or the equivalent; and Has authority to hire or fire employees or whose recommendation is given significant weight
12 Executive Exemption Management includes, but is not limited to: interviewing, selecting, and training of employees; setting and adjusting rates of pay and hours of work; directing the work of employees; appraising employees productivity and efficiency for the purpose of recommending promotions; handling employee complaints and grievances; and disciplining employees
13 Administrative Exemption Primary Duty is comprised of performance of office or nonmanual work directly related to management or general business operations of the employer and employer s customers Functional areas such as accounting, marketing, HR, purchasing - AND- Exercises discretion and independent judgment with respect to matters of significance Involves comparison and evaluation of possible courses of conduct and acting after the various possibilities have been considered independent of immediate and direct supervision Is not equivalent to use of skill in applying well-established techniques or standards
14 Professional Exemption Learned Professional Performs work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction Creative Professional Performs work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor. Computer Professional Primary duty must consist of application of systems analysis techniques and procedures to determine system functional specifications Design, development, documentation, analysis, modification, or testing of computer systems or programs
15 DOL NEW RULE - eff. December 1, 2016, but stayed by nationwide injunction on November 22, Standard salary level set at 40 th percentile of earnings for fulltime salaried employees in the lowest Census region. $913 weekly ($47,476 annually) Establishes a mechanism for automatically updating the salary and compensation levels every three years to maintain the above percentiles
16 Nationwide Injunction Judge Amos Mazzant of the Eastern District of Texas stayed implementation of the regulation He ruled the DOL would have exceeded its authority under the FLSA by making the overtime exemption conditioned on an employee s salary rather than whether the employee performed an executive, administrative, or professional job function The DOL has appealed the decision to the 5 th Circuit Court of Appeals
17 What Should Employer s Do? If the regulation were to ultimately be held valid and implemented, how will courts treat the interim period between the initial effective date of Dec. 1, 2016, and the date of implementation? Federal courts have had varying opinions on whether employers are expected to comply with previously enjoined administrative rules by the proposed effective date, or not until the rules are declared valid by an appeals court
18 What Should Employer s Do? Employers face a conundrum: Pay overtime compensation to employees affected by the rule and risk never recouping those payments if the rule remains invalidated, or withhold overtime compensation from those employees affected by the rule and gamble that a court will not impose back pay and possibly liquidated damages
19 What Should Employer s Do? Do not award significant pay increases, but temporarily reclassify and limit affected employees to 40-hour workweeks. At this particular time, do not increase a reclassified employee s pay just to meet the increased salary standard for the exemption. Prohibit overtime work without prior authorization Pay overtime compensation to affected employees RECORDS!!!!! Start tracking time Keep records as required by DOL
20 What Should Employer s Do? Notify employees that will be affected Be consistent with the message and rationale Share that DOL and uncertainly concerning injunction is forcing you to temporarily reclassify workers Provide clear next steps how will it affect the worker Offer a feedback loop Update job descriptions and sign any necessary policies such as breaks, late arrivals, early departures, etc.
21 Volunteers Volunteers are subject to minimum wage and overtime UNLESS all the following criteria apply: The volunteer service is provided to a nonprofit organization or to a public agency for civic, charitable, or humanitarian purposes; The volunteer must not displace regular employed workers or perform work that would otherwise be performed by regular employees; There must be a complete absence of coercion, or under pressure; and The volunteer may not receive more than a nominal compensation
22 Breaks and Meal Times Breaks: If less than 30 minutes, are hours worked and compensable Meal times: If 30 minutes or more, and completely relieved of duty, is not hours worked
23 On Call Time On call while at employer s premises hours worked On call at home or elsewhere after providing a phone number to be reached generally not hours worked
24 Travel Time Time spent traveling from home to the work site and back is not hours worked unless: Employee travels to a distant city on a special one-day assignment (less normal commute time) Employee performs work on the way to and from the work site Time spent traveling during the day as part of the employee s duties is generally hours worked Overnight trips: Travel time that corresponds to normal working hours or days employee does not work is compensable Meal time is not compensable Generally, time spent outside regular working hours as a passenger on a plane, bus, etc is not hours worked
25 Compensatory Time Exception available only to public employees Employee must agree prior to commencing work 1 ½ hours of compensatory time in lieu of overtime for each hour worked Work in a public safety, emergency response, or seasonal activity = accrue no more than 480 hours Any other work = accrue no more than 240 hours Payout of compensatory time shall be paid at the regular rate earned by the employee at the time the employee receives the payment
26 Interns Subject to minimum wage and overtime rules unless: The internship is similar to training which would be given in an educational environment; The internship experience is for the benefit of the intern; The intern does not displace regular employees; The employer receives no immediate advantage from any activities performed by the intern, and on occasion, operations may be impeded by the intern; The intern is not necessarily entitled to a job at the conclusion of the internship; or The employer and intern understand the intern is not entitled to wages during the internship
27 Recordkeeping Employer must keep for each non-exempt employee: Name, address, date of birth (if younger than 19) Social Security Number Gender Occupation Work week dates and times Hours worked each day and week Basis ofpayment hourly, weekly, piecemeal, commission Regular hourly pay rate
28 Recordkeeping Earnings Total daily or weekly straight-time pay Total overtime pay for work week Any additions to, or deductions from, the employee s wages Total wages paid each pay period Date of payment and pay period covered by the payment
29 Record Retention Payroll records 3 years Timecards, schedules, etc. 2 years
30 Enforcement Audits by DOL Complaints by employees Spontaneous by DOL Lawsuits initiated by DOL Lawsuits initiated by employees Class action lawsuits
31 FLSA Liability 2 to 3 years of back overtime pay not paid Liquidated damages of 100% Attorney fees
32 Independent Contractors DOL BWC UC Commission IRS OPERS
33 Common Law Right to Control Level of instruction. If the employer directs when, where, and how work is done, this control indicates a possible employment relationship. Amount of training. Requesting workers to undergo employer provided training suggests an employment relationship since the employer is directing the methods by which work is accomplished. Degree of business integration. Workers whose services are integrated into business operations or significantly affect business success are likely to be considered employees. Extent of personal services. Employers who insist on a particular person performing the work assert a degree of control that suggests an employment relationship. In contrast, independent contractors typically are free to assign work to anyone.
34 Common Law Right to Control Control of assistants. If an employer hires, supervises, and pays a worker's assistant, this control indicates a possible employment relationship. If the worker retains control over hiring, supervising, and paying helpers, this arrangement suggests an independent contractor relationship. Continuity of relationship. A continuous relationship between an employer and a worker indicates a possible employment relationship. However, an independent contractor arrangement can involve an ongoing relationship for multiple, sequential projects. Flexibility of schedule. People whose hours or days of work are dictated by an employer are apt to qualify as employees.
35 Common Law Right to Control Demands for full-time work. Full-time work gives an employer control over most of a person's time, which supports a finding of an employment relationship. Need for on-site services. Requiring someone to work on the employer s premises particularly if the work can be performed elsewhere indicates a possible employment relationship. Sequence of work. If an employer requires work to be performed in specific order or sequence, this control suggests an employment relationship.
36 Common Law Right to Control Requirements for reports. If a worker regularly must provide written or oral reports on the status of a project, this arrangement indicates a possible employment relationship. Method of payment. Hourly, weekly, or monthly pay schedules are characteristics of employment relationships, unless the payments simply are a convenient way of distributing a lump-sum fee. Payment on commission or project completion is more characteristic of independent contractor relationships. Payment of business or travel expenses. Independent contractors typically bear the cost of travel or business expenses, and most contractors set their fees high enough to cover these costs. Direct reimbursement of travel and other business costs by a company suggests an employment relationship.
37 Common Law Right to Control Provision of tools and materials. Workers who perform most of their work using company-provided equipment, tools, and materials are more likely to be considered employees. Work largely done using independently obtained supplies or tools supports an independent contractor finding. Investment in facilities. Independent contractors typically invest in and maintain their own work facilities. In contrast, most employees rely on their employer to provide work facilities. Realization of profit or loss. Workers who receive predetermined earnings and have little chance to realize significant profit or loss through their work generally are employees.
38 Common Law Right to Control Work for multiple employers. People who simultaneously provide services for several unrelated employers are likely to qualify as independent contractors. Availability to public. If a worker regularly makes services available to the general public, this supports an independent contractor determination. Control over discharge. An employer s unilateral right to discharge a worker suggests an employment relationship. In contrast, a company's ability to terminate independent contractor relationships generally depends on contract terms. Right of termination. Most employees unilaterally can terminate their work for a company without liability. Independent contractors cannot terminate services without liability, except as allowed under their contracts.
39 DOL Standard Economic Realities Test Whether the worker is economically dependent on the employer. Is the work an integral part of the employer s business? Does the worker s managerial skill affect the worker s opportunity for profit or loss? Does the work performed require special skill and initiative? How does the worker s relative investment compare to the employer s investment? Is the relationship permanent or indefinite? What is the nature and degree of control by the employer? Is there a degree of independent business organization and operation?
40 DOL Standard DOL does not consider relevant: place work is performed absence of a formal agreement whether alleged independent contractor is licensed by state or local government
41 Examples of Independent Contractors Who Should Be Employees Individual contracted to provide same building maintenance responsibilities previously provided by an employee; Individuals contracted to perform investigative services for County Coroner; Individual contracted to perform financial consulting services by Court who was previously employed as CFO by Court; and Grant funded positions for Court for drug counselor, community service program director, and administrative assistant
42 Thank you Jeffrey A. Stankunas, Esq. Isaac Wiles Burkholder & Teetor, LLC Two Miranova Place, Suite 700 Columbus, Ohio Phone: Fax:
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