Drake Maynard Advanced Wage and Hour Issues HR Services, LLC DDAA 919.259.3415 Kingsport, TN April 2014 dmhrservices@gmail.com Drake Maynard/Bob Joyce
Our Agenda Today What is (and is NOT) compensable time Travel Time Fluctuating workweeks Use and tracking of comp time Issues in overtime calculation Safe harbor policies 2
Part I WHAT IS, AND IS NOT, COMPENSABLE 3
WORK is TIME
Breaks And Meals FLSA does NOT require employers to provide break time OR meal time Breaks from work of less than 30 minutes are work time
Meal Time For meal periods to be UNPAID, they must be: 1. At least 30 minutes 2. Consecutive 3. Uninterrupted 4. Employee is free to use for own purposes
Meal Period at the Work Station and Bad idea Other Mistakes Only takes 1 interruption to convert all the previous time to PAID work time Arriving early Leaving late
Telecommuting / Working from home Exempt and non-exempt Accurate records of hours worked Awareness of what is work Working off the clock After hours contact by management
Part II TRAVEL TIME 9
Travel Time 1. Home to Work 2. Home to Work on Special One Day Assignment in Another City 3. Travel All In The Day s Work 4. Travel Away From Home Community
Home to Work/Work to Home Travel from home to work/work to home is not compensable work time.
Travel All In The Day s Work 1. Travel from home to first worksite = non-compensable time 2. Travel from worksite to worksite during the day = compensable work time 3. Travel from employer s premises to work site = compensable work time 4. Travel from last work site to employer s premises = compensable work time 5. Travel from last work site to home = non-compensable time
Travel From Home To Work Place = Noncompensable Time Home Work WORK TIME 13
Travel From Worksite To Worksite During The Day = Compensable Work Time JOB A JOB B JOB C Work Time 14
Travel Time From Employer s Premises To Work Site = Compensable Work Time EMPLOYER S PREMISES JOB A Work Time 15
Travel From Last Work Site To Employer s Premises = Compensable Work Time JOB C EMPLOYER S PREMISES Work Time 16
Home to Work on Special One Day Assignment in Another City Start time (home): 8 am Arrival time: 11 am [1 hour meal period] Departure time: 4 pm Return (home): 7 pm [Usual commuting time: To/From = 1 hour]
Home to Work on Special One Day Assignment in Another City (Start to Return home [11 hrs]) (Meal Period [1 hr]) (Usual Commute [1 hr]) = Compensable Work Time (9 hours)
Travel Away From Home Community Travel away from home = work time when it cuts across the employee's usual working hours Time is not only hours worked on regular working days during usual working hours but also during corresponding hours on nonworking days. Note: Time spent in travel away from home outside of regular working hours as a passenger is not work time.
Travel Away From Home Community - Example Regular work hours 8 am to 5 pm Employee leaves Cincinnati for Cleveland for a Monday morning meeting on Sunday at 2 pm. Arrives in Cleveland at 6 pm. Time from 2 pm to 5 pm is compensable work time. Time from 5 pm to 6 pm is not work time.
Working Off The Clock Working off the clock occurs when a nonexempt employee works after either signing or clocking out for the day. Can result in working extra hours beyond the employee s scheduled or approved hours and lead to potential overtime situations. Can easily happen when nonexempt employees check their work email or use agency smart phones/pads for agency business after hours.
Part III - Compensating Employees With Fluctuating Shifts THE FLUCTUATING WORK WEEK 22
How Does It Work? Employee must be paid a fixed salary for all hours worked, regardless of whether the employee works less than 40 hours or more than 40 hours in a given workweek 29 CFR 778.114 23
The Details For the fluctuating work week to be used: 1. There must be an understanding between the employer and the employee that the employee will be paid using the fluctuating workweek method and how it works; 2. The workweek of the employee must be a fluctuating one 3. The employee must be paid a fixed salary regardless of the number of hours worked each week; 24
The Details, Pt. 2 4. The salary must be sufficiently large enough so that the regular rate of pay will never drop below the minimum; 5. In addition to the fixed salary, the employee must be paid overtime premiums for any hours worked over 40 in the workweek. The overtime premium rate is 50% of the regular rate of pay for that workweek 25
Fluctuating Work Week - Overtime When more than 40 hours are worked in a work week: the employee is paid an overtime premium for the hours over 40 at the rate of just 50% of the employee s regular rate of pay. 26
Example 1 No Overtime Employee works 40 hours Regular salary for 40 hours is $400. Regular rate of pay is $10.00 ($400 divided by 40 hours) No overtime due Total salary for week = $400 27
Example 2 No Overtime Employee works 35 hours Regular salary for 40 hours is $400. Regular rate of pay is $11.43 ($400 divided by 35 hours) No overtime due Total salary for week = $400 28
Example 3 - Overtime Employee works 44 hours Regular salary for 40 hours is $400 Regular rate of pay is $9.09 ($400 divided by 44 hours) 4 overtime hours x the overtime rate of pay $4.55 ($9.09 divided by one-half) = $18.20 Total salary for week = $418.20 29
Example 4 More Overtime Employee works 50 hours Regular salary for 40 hours is $400 Regular rate of pay is $8.00 ($400 divided by 50 hours) 10 overtime hours x the overtime rate of pay $4.00 ($8.00 divided by one-half) = $40.00 Total salary for week = $440.00 30
Part IV USE AND TRACKING OF COMP TIME 31
What Is Comp Time? For public employers, an alternative to O/T pay For all employers, a policy choice for exempt employees 32
Comp Time Instead of O/T Pay Begins at 40 hours 1 ½ paid time off Maximum accumulation 240 hours 240+ - O/T pay required 33
Tracking & Managing Comp Time Time off within same work week Only O/T after work week ends Require use of Comp Time before any other paid time off One way is to set payout time 34
Part V ISSUES IN OVERTIME 35
Overtime Issues Policy requiring advance approval for O/T work Arriving early Leaving late Computing the Regular Hourly Rate Second job, same employer 36
Part VI SAFE HARBOR POLICIES 37
What Is A Safe Harbor? Improper deductions from salary Exemption is not lost if: 1. Clearly communicated policy 2. Reimburses improper deductions 3. Commitment to comply in the future 38
Deductions From Pay - Exempt An exempt employee of a public agency may have his or her pay reduced or may be placed on unpaid leave for absences due to illness or injury of less than one full day when leave is not used by the employee because: permission to use leave has not been sought or permission has been sought and denied; the employee's accrued leave has been exhausted; or the employee chooses to use leave without pay; provided that the employee is paid according to a pay system established by statute, ordinance or regulation or by a policy or practice established pursuant to the principles of public accountability, under which the employee accrues personal leave and sick leave and which requires the public agency employee's pay to be reduced for such absences. 29 C.F.R. 541.710 39
QUESTIONS? 40
Contact Information Drake Maynard, DMHR Services, LLC dmhrservices@gmail.com 919-259-3415 Bob Joyce 41