Complying with Wage-Hour Regulations. About SESCO. Introduction. Founded in 1945 Represent clients in all 50 states

Transcription

1 Complying with Wage-Hour Regulations About SESCO Founded in 1945 Represent clients in all 50 states Available through monthly service agreements -- no billing per hour Introduction Trends in FLSA White-Collar Exemptions Application of Regulations Common Violations Independent Contractors State Laws 1

2 Trends in FLSA Litigation/Action FLSA lawsuits Four (4) year liability Attorney fees FLSA violations/liability/fines #1 in 2012 Targeted investigations by industry Education by Wage-Hour (billboards/ commercials/print/etc.) Online information Lawyer marketing FLSA Basics Non-Exempt employees must: receive minimum wage ($7.35) maintain an accurate time record receive overtime at time and one-half hours worked in excess of 40 hours per week Unless exempt White-Collar Exemptions Executive Exemption Administrative Exemption Learned Professional Exemption Creative Professional Exemption Computer Exemption Outside Sales Exemption Highly-Compensated Employees 2

3 White-Collar Exemptions Executive Exemption Management - 51% of work time Manager - 2 or more employees Hire/Fire Performance Reviews Discipline Owners/Site Managers General Managers White-Collar Exemptions Administrative Exemption Independent Discretion and Judgment 51% of work time Controllers/high level White-Collar Exemptions Learned Professional Exemption 4 Years Professional Degree RN s (not CNA s/lpn s) Nurse Practitioners MD s Physician Assistants 3

4 White-Collar Exemptions Computer Exemption Programmers/Analysts Not Help Desks, Network Administrators, Webmasters White-Collar Exemptions Outside Sales Exemption Engaged in Sales Outside 51% of work time White-Collar Exemptions Highly-Compensated Employees Guaranteed $100,000 or more annually Independent Discretion/Judgment 4

5 Guaranteed Salary Requirements White Collar Exemption Weekly Guarantee Executive $455 Administrative $455 Computer $455 (or $27.63 per hour or more, if paid hourly) Professional $455 Outside Sales Highly-Compensated Employees No minimum salary requirement $100,000 annually Myth Paying someone on a salaried basis does not mean they are exempt Exemption status is only determined by actual job duties/requirements Allowed Deductions from Guaranteed Salary - Exempt One (1) day or more for personal reasons One (1) day or more after exhausting PTO/ time off Offset jury/military pay Penalties for safety infractions 5

6 Allowed Deductions from Guaranteed Salary - Exempt One (1) day or more for disciplinary leaves Unpaid FMLA (full, partial, by hour based on policy) Begining/ending weeks Home Health Exemptions Companions exempt from minimum wage and overtime Companionship services include: Care/fellowship/protection of persons Household work for aged/meal preparation/bed making/clothes washing and other personal services General household work is included if it doesn t exceed 20% of the total weekly hours Home Health Exemptions Companionship services does not include: Services performed by trained personnel such as RN s/lpn s/cna s 6

7 Home Health RNs Exempt as Professional Exempt from overtime Must receive guaranteed salary of at least $455 per week Option Guaranteed salary of $455 in writing pay for service whichever is greater Fee for Service - Nonexempt Staff can be compensated by visit Must pay minimum wage for all hours worked Work hours includes travel, pre/post work Must pay overtime for work (as defined) for hours worked over 40 in a workweek Total all fees 40 = rate. Rate x 1.5 x overtime hours = overtime due. Common FLSA Violations/Traps 7

8 Trap #1 Misclassifying Non-Exempt Employees As Exempt Examples Managers performing non-exempt work Administrative employees non-exempt: Office managers Accountants Marketing personnel IT technicians LPN s CNA s Trap #1 Paying someone a salary does not mean they are exempt Titles do not sway investigators Trap #2 Employees cannot waive their rights DOL investigations yielding liability goes to Treasury Severance Agreements and Releases cannot include FLSA provisions 8

9 Trap #3 Fee for Service is not a guaranteed salary To be exempt as a manager or professional, we must guarantee a salary. Trap #4 What are Hours Worked? Break time Travel time Meetings Training Trap #4 Working lunches Pre-work Home work Unauthorized overtime 9

10 Trap #5 Not Calculating the Regular Rate Properly Not including all work time as defined Non-discretionary bonuses Averaging workweeks Comp time Trap #6 Improper Pay Deductions Below Minimum Wage Loans call them advancements Equipment breakage Not returning equipment/materials/uniforms Trap #7 Holding an employee s paycheck at time of separation Missouri requires final pay due on day of discharge If employee quits wages are due next regular pay period 10

11 Trap #8 Misclassification of Independent Contractors Improper classification Tax liability Workers comp liability Overtime liability DOL actively pursuing miclassifications DOL settlement program Trap #9 Offsetting overtime with comp time SESCO s Staff Recommendations for Compliance Issue policy on clocking time by other employees Policy for mispunches/edits Manager sign handwritten time entries Edit time records before paying Implement rounding policies Conduct annual compliance audits of exemption status 11

12 Missouri State Laws Vacation comply with policy No laws on breaks/meals No laws on personnel file access At-will state Breaks for nursing mothers SESCO s Service Agreement $40 per month Unlimited telephone consultation/fax/research Free handbook review One (1) set federal/state posters The SESCO Report, SESCO s monthly newsletter $125 - $150 per month Same at $40 per month plus Onsite audit with report Program Conclusion Thank you for your attention and participation Bill Ford, President/CEO 12