The Fair Labor Standards Act

1. The Fair Labor Standards Act And State Statutes

2. Things to Learn • Does the Fair Labor Standards Act (FLSA) require employers to provide: • Lunch breaks • Breaks during the day • Holiday pay, and • Christmas pay • Overtime pay

3. Things to Learn • Does the Fair Labor Standards Act (FLSA) require employers to provide: • Vacation pay • Sick pay • Jury Duty pay • Severance pay and • Bereavement pay

4. Things to learn • What does the Fair Labor Standards Act (FLSA) state about: • How many hours is full-time? • How many hours is part-time?

5. Things to Learn • Are employers liable for employees working off the clock, even if they do not know about it? • What should you do at all staff meetings?

6. FLSA Child Labor Provisions • 18 years of age or older, any job, unlimited hours • 16 and 17 years old, any non-hazardous job, unlimited hours - Sears & DOL • 14 an 15 years old, any non-hazardous job under certain conditions

7. FLSA 14 & 15 Year old Conditions • No more than 3 hours per school day, 18 hours per school week • No more than 8 hours on a non-school day, 40 hours in a non-school week. • Cannot work before 7:00 am

8. FLSA 14 & 15 Year old Conditions • Cannot work past 7:00 pm from Labor Day to Memorial Day • Cannot work past 9:00 pm from Memorial Day to Labor Day

9. FLSA Does Not Cover • Vacation pay, • Holiday pay • Severance pay • Sick pay • Bereavement pay • Jury Duty pay • Severance pay

10. FLSA Does Not Cover, Cont. • Any limit to the number of hours in a day or days in the week that an employee may be required to work. • The hours/schedules of employees • Incentive pay for Weekend or Holiday Work • Pay Raises or Fringe Benefits • Payment of Final Wages

11. FLSA Does Not Cover, Cont. • How many hours is full time. • How many hours is part time. • Require Meals or Rest Periods

12. FLSA Total Exemptions • Executive • Administrative • Professional • Computer Professional

13. Executive Exemption • Job duties are exempt executive if the employee • regularly supervises two or more other employees, and also • has management as the primary duty of the position, and also, • has some input into the job status of other employees (such as hiring, firing, promotions, or assignments).

14. Administrative Exemption • The most elusive and imprecise definition is for exempt "administrative" job duties. • (a) office or non-manual work, which is • (b) directly related to management or general business operations of the employer or the employer's customers, and • (c) a primary component of which involves the exercise of independent judgment and discretion about • (d) matters of significance.

15. Administrative Exempt, Cont. • Administratively exempt work typically involves the exercise of judgment and discretion, with the authority to make independent decisions on matters which affect the business as a whole or a significant part of it. • There is no "bright line."

16. Professional Exemption • The job duties of the traditional "learned professions" are exempt. These include lawyers, doctors, dentists, teachers, architects, clergy. Also included are registered nurses (but not LPNs), accountants (but not bookkeepers), engineers, and other employees who perform work requiring "advanced knowledge"

17. Professional Exemption, Cont. • Advanced degrees are the most common measure of this, but are not absolutely necessary if an employee has attained a similar level of advanced education through other means (and perform essentially the same kind of work as similar employees who have advanced degrees).

18. Computer Professional • Consulting with users to: • determine hardware, software or system functional specifications; or b) design, development, documentation, analysis, creation, testing or • modification of computer systems or programs, including prototypes, based on and related to user or system design specification; or

19. Computer Professional, Cont. • c) design, • documentation, testing, creation or modification of computer programs based on and related to user or system design specifications; or a • combination of the duties described above, the performance of which requires the same level of skills

20. Salary Test • With few exceptions, an employee must (a) be paid at least $23,660 per year ($455 per week), and (b) be paid on a salary basis, and also (c) perform exempt job duties. Employees who are paid less than $23,660 per year ($455 per week) are nonexempt.

21. Salary Test Changes? • Economic Policy Institute (EPI), a non-profit, recently recommended an increase to $970 per week, or $50,440 per year. • Current requirement $23,660 for a potential $26,780 increase, a 113.18% increase.

22. Professional Changes? • Required four year degree in the employee’s area of work. • Degree in psychology but working as a computer consultant would not qualify for exempt status.

23. FLSA Pay Classifications • Exempt – Salaried • Non-Exempt – Salaried • Hourly

24. Hours Worked • Meal periods of at least 30 minutes, duty free, are not compensable time. (Employees do not have to be allowed to leave work.) • Morning and afternoon breaks of 20 minutes or less are compensable time. • Required meetings are compensable time.

25. Overtime – Non-Exempt • Due after 40 worked hours, per week. (ARC & Corps) • Paid at time and one half of the employee’s regular rate. • Each work week stands alone. (Averaging the hours of two or more weeks is not permitted.)

26. Overtime – Non-Exempt, Cont. • Comp time must be given, within the same work week, if given, in lieu of wages. • Employee works 32 hours, takes 8 hours of sick time and 8 hours of personal time for a total of 48 hours. How many hours of overtime is this employee due? • Zero, Overtime is only required to be paid on hours worked.

27. Overtime – Non-Exempt, Cont. • Hourly employee working two or more jobs: • Weighted Average O/T, preferred by DOL • 30 hours x $10 per hour = $300 • 10 hours x $8 per hour = $ 80 • $380 / 40 hours per week = $9.50 weighted avghrly pay • O/T rate for work actually performed during O/T period, at the actual rate of the specific work performed, IF agreed to in advance of the O/T hours being worked

28. Hourly Employee Deductions • Employers can not make deductions from employee’s paycheck for: • Uniforms • Tools • Damage to employer property by employee • Theft of employer’s property by employee • Register over/shortages

29. Hourly Employee Deductions, Cont. • Uniform cleaning costs • or other items, IF the deduction takes the employee below the federal minimum wage. • These deductions can not be made, even if the loss is due to the employee’s negligence.

30. Hourly EE Deductions, Cont. • Employee paid $8 per hour. • Works 3 days and termed. ((8.00-7.25 Min Wage) = 0.75 x 24 hours = $18 above minimum wage) • Employee fails to return employee handbook resulting in $20 deduction. • Employee paid less than minimum wage for the 3 days by $2. ($7.17 vs $7.25).

31. Hourly EE Deductions, Cont. • Employer can not avoid minimum wage pay by having the employee repay the employer with cash, in lieu of deducting the amounts directly from the employee’s paycheck.

32. DOL Top Problems • Violation of underage minors hours or job functions. • Failure to pay O/T to nonexempt EEs. • Failure to maintain records on hourly employees. (Anderson Vs Mt Vernon Pottery, SC 1846) • Granting Comp Time off, in another pay week, in lieu of O/T pay

33. DOL Top Problems Cont. • Deductions which reduce an employee’s pay below minimum wage. • **(80% of all DOL audits are triggered by current or former EEs.)

34. FLSA Liability • Supervisors, human resources and senior management can be held PERSONALLY liable for FLSA violations. • The employer definition in the FLSA is: “any person acting directly or indirectly in the interest of an employer in relation to an employee.”

35. FLSA Liability • Employees working off the clock, even if the supervisor is not aware, can result in Supervisor liability. • Not taking lunch. (Drivers) • Reporting to work early. • Working after clocking out.

36. Questions and Answers