DOL Wage and Hour Investigations

Transcription

1 DOL Wage and Hour Investigations Presented By: Kalen Fraser - The Labor Brain Inc. Lee Wicker North Carolina Growers Association Start off on the right foot Aggressive, Political, Defensive OR Professional, Respectful, Strong Today s Presentation US DOL Wage and Hour in Washington State Wage and Hour Investigative Process & Consequences Top Ten Compliance Lists ¾ Guarantee Guide Questions 1

2 Disclaimer Speakers Kalen Fraser and Lee Wicker do not practice law or provide legal services. The information provided today is for informational and educational purposes only. The information provided is not a substitute for the advice of an attorney. US Department of Labor Wage and Hour Division District Office in Seattle with field offices in Yakima and Spokane Enforces H2A program on the ground Wage and Hour enforces FMLA, Fair Labor Standards Act, H2A and MSPA Wage and Hour Investigations Why do they happen to you? Lee s advice What do I do before an investigation? 2

3 Investigative Process and Consequences The investigative process: Initial conference Confidential interviews Records check Vehicle and Housing Inspections Back wage calculations Final Conference Civil Money Penalty assessment letter Lee s advice What do I do during an investigation? Consequences Back wages Liquidated Damages Civil Money Penalties (fines) Most violations start at $1,631. For laying off, displacing, or improperly rejected a US workers it s $16,312. Some violations are a single violation ($1,631). Others are assessed per worker (30 workers * $1,631 = $48,930). Mitigating factors are applied. Investigators and managers have discretion. Debarment Lee s advice What do I do after an investigation? 3

4 Top Ten FLSA Checklist 1. Minimum wage 6. Misclassified employees as independent contractors 2. Salaried exempt employees 7. Illegal deductions 3. Bonuses included in overtime rate 8. FLSA poster 4. Payment for all hours worked 9. Time records 5. Child labor 10. Piece rate pay records Top Ten MSPA Checklist 1. Payroll records 2. Disclosures 3. Wages 4. MSPA Poster 5. Time Records 6. Federal FLC & FLCE Registrations / State of WA FLC 7. Pay Stubs 8. Housing Standards 9. Transportation Standards 10. Joint Employment Top Ten H2A Checklist 1. Pay stubs / Pay records 2. Contract disclosure 3. Reimbursement/Payment of visa, consulate & border crossing fees 4. Reimbursement/Payment of transportation, lodging, and per diem 6. Treating corresponding and foreign workers equally 7. Transportation and Housing Standards 8. Paying highest applicable wage 9. Contracts with recruiters and forbidding recruitment fees 5. Proper recruitment 10. Notifying if workers abscond or are terminated early 4

5 ¾ Guarantee Guide Basic Requirement: Must offer each worker hours equal to at least 75% of the workdays in the contract starting with the day he arrives. Required Hours: An employee can only be required to work the hours and days listed on the job contract. An employee cannot be required to work on his Sabbath, a Federal holiday, or more than the hours or days listed. Counted Hours: If employees choose to work during unrequired hours those hours are counted towards the ¾ guarantee. Also, if an employee fails to work on a day listed on the contract, the hours offered for that day (up to the maximum listed on the contract) are counted as hours offered. Pay Records: Number of hours offered. Hours actually worked. If hours worked are less than hours offered include details. Pay Statement: Number of hours offered. Hours actually worked. ¾ Guarantee cont d Hours worked will always be equal to or less than hours offered. It s possible that the number of hours offered will vary by employee. Example: The work contract lists 8 hours for Monday and everyone works 10 hours except for Alex who is sick and doesn t work any. Alex will have 8 hours offered for the day and everyone else will have 10. Questions? 5