11/2/2016
The Fair Labor Standards Act Basics Susan J. Moore GMA General Counsel Disclaimer: This presentation is for general information purposes only and is NOT legal advice. Consult with your attorney before taking any action based on information in this presentation.
FLSA Basics Employee vs. Independent Contractor Minimum Wage Overtime Exemptions • • • •
Executive Administrative Professional Highly Compensated Employees
Special Rules for Law Enforcement and Firefighters Compensatory Time Recordkeeping Penalties for Violations
FLSA History Enacted in 1938, the purpose of the FLSA was to ensure that workers were paid a minimum, livable wage and to encourage employers to hire more workers by making overtime work more expensive. With the U.S. Supreme Court decision in Garcia v. San Antonio Metro. Transit Auth. in 1985, the law became settled that the FLSA applied to state and local governments. In 2004, DOL issued new regulations revising the salary amount required to be exempt from overtime, established a new test for highly compensated employees and changed some of the duties required for exemption.
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FLSA History Prior to those changes in 2004, the duties test had remained largely the same since 1949 and the last major revisions to the “salary basis” test were in 1954. The minimum salary level for exemption from overtime had increased in 1940, 1949, 1958, 1963, 1970 and 1975.
FLSA Basics Major groups not covered by the FLSA: Elected officials, volunteers and independent contractors Independent Contractor: Economic Realities test • • • • • • •
Are services rendered integral to the employer’s business? How much control does the employer exert over the individual? Does the individual have an opportunity for profit or loss? Has the individual invested in the business? Is the working relationship exclusive or long‐term? Does the individual have other customers? How much skill is required to perform the work?
FLSA Basics Minimum Wage: Currently $7.25/hour Workweek: Any established consecutive set of 168 hours • Set by the Employer • Could be Sunday‐Saturday • Could be Monday‐Sunday or any other variation
Unless employees are paid weekly, workweek and pay period are separate things.
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FLSA Basics Must pay for all hours actually worked Do the following count as actually worked? • • • • • •
Holidays (NO) Sick Leave (NO) Other Leave Lunch/break Training (Yes, if for the benefit of the employer) Travel (Yes, if for work. No for commuting to work)
FLSA Basics Straight Time = Regular Hourly Rate of Pay
• Even salaried employees may be eligible for overtime. • Regular hourly rate of pay = salary / number of hours worked the salary is intended to cover.
Overtime = 1.5 x Straight Time For all hours over 40 worked in a workweek.
MYTH: All employees paid a salary are exempt from overtime. TRUTH: Exemption requires three things: • Salary level AND • Salary basis AND • Job duties
FLSA Basics Employees are eligible for overtime unless covered by an exemption. Three‐part test for exemption: • Salary Amount AND • Paid on a Salary Basis AND • Actual Job Duties (Job title/job description is irrelevant)
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Salary Amount Amount Required for Exemption Increasing December 1, 2016. • Current amount is $455/week ($23,660/year) • New amount is $913/week ($47,476/year) • Amount will be indexed to the 40th percentile of full‐time salaried workers in the lowest‐wage Census region • Amount is reset every three years with the first reset in 2020
Employer can use nondiscretionary bonuses or incentive pay to satisfy up to 10% of the salary level, provided such bonus or incentive is paid out on a quarterly or more frequent basis.
Salary Basis Employee receives each pay period a predetermined amount not subject to reduction because of variations in the quality or quantity of work. For employees of public agencies, deductions may be made for absences under a system where the employee accrues personal and sick leave. Deductions of a full day or less are permitted when: • • • •
Leave has been requested and denied OR Accrued leave has been exhausted OR Employee chooses to use leave without pay OR Employee is absent due to budget‐required furlough
Executive Exemption An executive’s primary duty is managing the enterprise or a department or subdivision of the enterprise. Executive Exemption Criteria: • Must customarily and regularly direct the work of at least two employees AND EITHER • Have the authority to hire or fire OR • The employee’s suggestions and recommendations as to the hiring, firing or other change of status of employees must be given particular weight
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Administrative Exemption An administrator’s primary duty is performance of office or non‐ manual work directly related to the management or general business operations of the employer. Administrators must also exercise discretion and independent judgment with respect to matters of significance.
Professional Exemption Professional primary duty: • Work requiring knowledge of an advanced type in a field of science or learning customarily acquired by prolonged, specialized, intellectual instruction or study OR • Work as a computer systems analyst, computer programmer, software engineer, or other similarly‐skilled worker in the computer field AND • Work requires consistent exercise of discretion and judgment.
Highly Compensated Employee Qualifying Salary Amount Increasing December 1, 2016: • Current amount is $100,000/year • New amount is $134,004/year • Salary amount is indexed to 90th percentile of full‐time salaried workers nationally and will be reset every three years starting in 2020.
A highly compensated employee’s primary duty is office or non‐manual work AND the employee otherwise qualifies under test for exemption as executive, administrative or professional employee.
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Addressing the New Salary Amount for Exemption Q: If multiple employees hold the same position but some are paid on a salary basis an amount over the threshold for exemption (due to longevity or merit increases) and others make less, what should the employer do? A: First examine whether the employees are eligible for exemption based on the actual job duties performed. Job titles do not matter. Eligibility for exemption is based on what each individual employee actually does. Second, if all of the employees under consideration perform job duties eligible for exemption and are paid on a salary basis, the employer must treat those who do NOT earn the salary amount required for exemption as non‐exempt employees or raise the salary of those employees to the exemption threshold amount. Another option is for the employer to treat all employees performing those job duties as eligible for overtime even though some could be exempt. Finally, the employer could treat some of the employees as exempt and some as non‐exempt based upon whether they receive a salary amount eligible for exemption.
Addressing the New Salary Amount for Exemption Q: A salaried employee treated as exempt does not make at least $47,476 annually but regularly works more than 40 hours per week. What can the employer do? A: First see if the actual job duties qualify the employee as eligible for overtime exemption. If not, pay the employee overtime for all hours over 40 actually worked in a workweek. If all tests for exemption are met except for the salary amount, the employer may raise the salary to the exemption threshold and treat the employee as exempt from overtime. Another option is for the employer to hire an additional employee (FT or PT) so that the existing employee is not required to work over 40 hours in a workweek.
Addressing the New Salary Amount for Exemption According to the USDOL, in response to the new overtime rule employers can: • • • •
Pay time‐and‐a‐half for overtime work Raise employees’ salaries above the new threshold Limit workers’ hours to 40 per week OR Some combination of the above
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Law Enforcement Employees A law enforcement employee is a member of a government body empowered to enforce laws who has the power to arrest and has received law enforcement training. “Law Enforcement employees” do not include civilian employees of law enforcement agencies. If your city does not have at least five full‐ or part‐time law enforcement employees, these employees are exempt from the overtime requirement but not the minimum wage requirement. • 29 USC §213(b)(20); 29 CFR §553.200
Law Enforcement Employees For calculating overtime, workweek may be different from pay period • Established workweek may be 7‐28 days long
Overtime is not owed until more than the following number of hours are worked: • • • •
7 days → 43 hours 14 days → 86 hours 21 days → 128 hours 28 days → 171 hours
Firefighters A firefighter is an individual employed by a fire department who has been trained as required by state law and who has legal authority to engage in prevention or extinguishment of fire and performs such duties. If your city does not have at least five full‐ or part‐time firefighters, these employees are exempt from the overtime requirement but not the minimum wage requirement. • 29 USC §213(b)(20); 29 CFR §553.200
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Firefighters For calculating overtime, workweek may be different from pay period • Established workweek may be 7‐28 days long.
Overtime is not owed until more than the following number of hours are worked: • • • •
7 days → 53 hours 14 days → 106 hours 21 days → 159 hours 28 days → 212 hours
Compensatory Time Compensatory time is paid time off from work provided as an alternative to overtime payment. For non‐exempt employees it must accrue at the same rate as overtime (1.5 hours for all hours over 40 in a workweek). It can only be used if employee knowingly agrees to it as a condition of employment and the employee is informed how comp time may be preserved, used or cashed out (must be consistent with FLSA).
Compensatory Time Employees can generally accrue up to 240 hours of comp time (which equates to 160 hours of overtime work). Employees who perform public safety, emergency response or seasonal work may accrue up to 480 hours of comp time. • Public safety: Law enforcement, firefighting or related activity. Not civilian employees • Emergency response: Dispatching emergency vehicles and personnel, rescue work and ambulance service personnel
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Compensatory Time Employees must be allowed to use accrued comp time within a reasonable period after making the request so long as it will not unduly disrupt the employer’s operations. Employers may require employees to use comp time and may cash out comp time. Upon termination of employment, an employee must be paid for unused comp time at the regular rate received by employee at that time or average of regular rate for last three years of employment, whichever is greater.
Exempt Employees Can receive comp time but employer determines calculation method Should all be required to keep and submit accurate, timely record of hours actually worked • Can be used to calculate overtime owed if exemption of employee is challenged • Can be used by employer to award comp time or bonus • Can show where additional employees or other resources are needed • Bolsters morale by placing uniform requirements on all employees
Recordkeeping Records that must be kept on all employees: • • • • • • •
Name in full (as used for Social Security purposes) Home address, including zip code Date of birth, if under 19 Sex and occupation Time of day and day of week on which employee’s workweek begins Total wages paid each pay period Date of payment and pay period covered by payment
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Recordkeeping Records required only for non‐exempt employees: • • • • •
Regular hourly rate of pay for any workweek in which overtime is due Hours worked each workday and total hours worked each workweek Total daily or weekly straight‐time earnings Total premium pay for overtime hours Total additions to or deductions from wages paid each pay period
• If comp time is used: • • • •
Number of hours earned each workweek or other applicable period Number of comp time hours used each workweek Number of comp time hours paid in cash AND Any written understanding with respect to earning and using comp time
Recordkeeping Records must be preserved at least three years.
• Retention period may be extended at the employer’s discretion due to potential litigation concerns as well as retirement benefit calculations
An employer can use the timekeeping system of its choice.
• To avoid disputes over hours worked, employer should require employees to attest to accuracy of record
An employer must pay for overtime hours worked by non‐exempt employees even if the hours were unknown or unauthorized. • Supervisors must not discourage non‐exempt employees from recording all hours worked • Manage overtime use of cell phones and computers by non‐exempt employees
Investigations and Violations FLSA is enforced by the Wage and Hour Division of the United States Department of Labor (DOL). Employee can sue to enforce minimum wage and overtime requirements. Suit must be filed within two years of violation or, if the violation is considered “willful”, within three years of violation. • DOL generally regards all violations as willful
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Investigations Usually commenced by employee complaint to DOL • Once commenced, investigation is not limited to complaint but can, and usually will, expand to ALL areas of payroll, recordkeeping and other practices
DOL may inspect records without subpoena. DOL will usually interview employees and check whether employer has posted required notices/posters.
Violations Where employer has violated minimum wage or overtime requirements, employee is entitled to unpaid wages or overtime for length of violation (up to two years or, if willful, three years) (prejudgment interest may also be awarded) PLUS An equal amount as liquidated damages PLUS Attorney’s fees if employee sues
Violations Retaliation against complaining employee is prohibited Court may issue injunction and order reinstatement Potential personal liability: The definition of “employer” includes “[a]ny person acting directly or indirectly in the interest of an employer in relation to an employee” Civil and criminal penalties
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Wage and Hour Live Webinar For Subscribers to HR Express Only! November 17, 2016 at 12:00 PM Details about DOL Overtime Rule Attorneys Available to Answer Questions www.gmanet.com/HR
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