THE ARCHDIOCESE OF SAINT PAUL AND MINNEAPOLIS

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1 THE ARCHDIOCESE OF SAINT PAUL AND MINNEAPOLIS 2015 EMPLOYMENT LAW UPDATE SEMINAR

2 Pay Issues Affecting Exempt (and Non-Exempt) Employees P R E S E N T E D B Y T h o m a s B. W i e s e r

3 INTRODUCTION The Fair Labor Standards Act (FLSA) requires that all employees be paid at least the minimum wage for all hours worked over 40 hours in a work week unless specifically exempted. The number of claims against employers for misclassifying workers continue to increase resulting in record breaking payments to employees for back wages, fees and penalties.

4 Current Minimum Weekly Pay Rate for Exempt Employee: $455 weekly $910 bi-weekly $ semi-monthly $1,971 monthly $23,660 per year

5 Salary Basis Pay Requirements Employee must receive the pre-determined pay each week without regard to number of hours worked. Salary cannot be reduced because of variations in quality or quantity of work. Employee may receive bonus or pay for work beyond normal work week.

6 Possible Adjustment in the Minimum Weekly Pay Rate for Exempt Employees: $810 weekly $1,620 bi-weekly $3,510 monthly $42,120 per year Department of Labor regulations are expected to be released soon.

7 Q: What Are Likely Consequences of an Increase of the Minimum Weekly Salary for Exempt Employees. Fewer employees classified as Exempt because they do not meet minimum weekly salary test. More employees classified as non-exempt and covered by overtime rules. Potential need to hire more staff to make up for hours formerly worked by Exempt employees.

8 Q: Can an employee voluntarily agree to be considered exempt rather than be treated as an hourly employee and thus subject to FLSA requirements? A: No. The FLSA requirements cannot be waived by the employee or modified by agreement.

9 Best Practices for Avoiding Claims for Overtime Pay by Non-Exempt Employees Pay the Employee for all hours worked. FLSA: Pay for all work employer suffers or permits. Minnesota FLSA work also includes: Training Time Call Time Cleaning Time Waiting Time Other time when the employee must be either on the premises of the employer, or Involved in the performance of duties in connection with his or her employment, or Must remain on the premises until work is prepared or available.

10 Pay Overtime for Work Over 40 Hours

11 Prohibit Off-the-Clock Work

12 Be Careful Not to Convert an Exempt Position by Addition of Non-Exempt Job Functions that Constitute the Position s Primary Duties Factors to consider when determining Primary Duty functions: The relative importance of the major or most important duty; The amount of time spent performing the major or most important job duty The employee s relative freedom from direct supervision; and The relationship between the employee s salary and wages paid to other employees for similar work.

13 Keep Good Time Records Note: Rounding Permitted The FLSA does not require the employer to pay an employee for each minute the employee is at work. It does permit an employer to round employee hours to 5, 10 or 15 minute increments.

14 Keep Good Pay Records This information will show that the employee has been paid for all hours worked if there is a claim for unpaid wages.

15 Don t Misclassify Workers as Independent Contractors Labeling a worker as an independent contractor is not controlling. Labeling a worker as an independent contractor may not be a factor that is even considered. Improperly classifying a worker as an independent contractor will result in claims for back wages, overtime, employee benefits, unpaid state and federal payroll taxes plus penalties and other costs.

16 Don t Use Comp Time for Overtime Pay for Non-Exempt Workers Compensatory ( Comp ) time off may not be used in lieu of paying the non-exempt employee overtime pay.

17 Don t Adopt a formal compensatory time off policy for exempt employees Avoids an expectation of extra pay work in excess of regular work hours. Avoids issue of how employees can bank compensatory time. Avoids issue of paying worker compensatory time upon termination.

18 FLSA Overtime Exemptions White Collar Duties Tests The burden is on the employer to prove the duties elements. Courts narrowly construe the white-collar exemption.

19 Executive Exemption Must satisfy the minimum weekly salary test (currently $455 per week). Primary duty is managing the enterprise or managing a customarily recognized department or subdivision. Must customarily and regularly direct the work of at least 2 or more employees. (Means 2 or more FTE or equivalent). Must have authority to hire or fire other employees. Must have authority to make recommendations as to hiring, firing, advancement, promotion and other status changes that hold weight. (Examples: Business owners, managers, vice-presidents.)

20 Executive Exemption (cont d) Definition Managing the Enterprise Includes: Interviewing, selecting and training employees. Setting and adjusting pay rates and hours of work. Directing the work of employees. Appraising employee productivity for purpose of recommending promotions. Handling employee complaints and employee discipline. Budget planning and control and monitoring. Legal compliance.

21 Administrative Exemption Primary duty: The performance of office or non-manual work directly related to the management or general business operations of the employer or employer s customers.

22 Administrative Exemption (cont d) Must include the exercise of discretion or independent judgment with respect to matters of significance. Discretion and Independent Judgment Factors: Employees who simply apply well-established techniques or procedures within closely prescribed limits to determine the response do not satisfy this exemption. Authority to formulate, affect, interpret or implement policies. Carries out major assignments. Performs work affecting business operations to a substantial degree. Can commit employer in matters with significant financial impact. Has authority to deviate from established policies and procedures. Provides consultation or expert advice to management. Is involved in planning business objectives. Represents the business in handling complaints or resolving disputes.

23 Administrative Exemption (cont d) Management or general business operations means: assisting with the running of the business. Must satisfy the minimum weekly salary test (currently $455 per week). Examples: tax, finance, accounting, budgeting, auditing, insurance, purchasing, personnel management, computer network internet-and database administration, human resources, public relations.

24 Teachers: Professional Exemption Primary duty is teaching, tutoring, instructing or lecturing in an area imparting knowledge and if employed or engaged in this activity as a teacher by an educational establishment.

25 Other Professionals Learned Creative Practice of Law or Medicine Computer* Outside Sales; and Highly Compensated. *Computer Professional Primary Duties: Application of techniques to determine hardware, software or system specifications. Design, development, analysis, creation, or testing of computer systems or programs. Design, testing, creation of computer programs.

26 Circumstances in Which an Employer May Make Deductions from Exempt Employee Pay (Very limited) Full-Day Absence for personal reasons (not sickness or disability (Full deduction is allowed). Full-Day Sickness or Disability Pursuant to established policy. (Full deduction is allowed). To Offset Payments for jury fee or temporary military duty pay. (Employer may only offset amounts received for the activity against that week s salary). For Violation of Significant Safety Rules. (Full deduction is allowed). Suspension for Violation of workplace Misconduct Rules. (Full deduction is allowed). Initial or Terminal Week of Employment. (Partial deduction allowed). FMLA Leave. (Partial deduction allowed).

27 Question: 1. If an exempt employee is absent for 1 ½ days for personal reasons, can the employer deduct for the full absence? 2. May an employer deduct a day s pay because the employer was closed due to inclement weather? 3. May an employer deduct three days pay because the employee was absent for jury duty? 4. May an employer deduct for a two-day employee absence due to a minor illness when the employer does not have a bona fide sick leave plan, policy or practice providing wage replacement benefits?

28 Effect of Improper Deduction from Salary Employer may lose the exemption. Factors to consider: The number of improper deductions. The time period during which the employer made improper deductions. The number and geographic location of employees whose salary was improperly reduced. The number and geographic location of managers responsible for taking the improper deductions. Whether the employer has a clearly communicated policy permitting or prohibiting improper deduction.

29 Exempt Employee Regular Work Schedule? Q: Can Exempt Employees be Required to Maintain a Regular Work Schedule A: Yes. Exempt employees can be required to comply with work schedule requirements.

30 Exempt Employee Tracking Work Hours Q: Can an Exempt Employee be Required to Track Working Hours? A: Yes. Exempt employees can be required to record hours worked.

31 Benefits of Tracking Hours Assess Productivity Assess Attendance Track FMLA Usage Can be a defense to claim for overtime if employee was misclassified.

32 Potential Negative Aspects of Requiring Exempt Employees to Track Their Time May create morale issues. Can create a record of substantial hours worked if the employee has been misclassified. May create the perception that the employee is not operating with the discretion and independence necessary to qualify as an exempt employee. CAUTION: The requirement for tracking hours should not be imposed on one employee or a group of employees in a discriminatory or retaliatory manner.

33 CONCLUSION

34 Thank You The information set forth in these materials is intended to provide an outline of the law existing as of the presentation date. It is not intended as, nor should it be considered, legal advice. If you are presented with a specific issue, you should consult with legal counsel.

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