FLSA AND WAGE PAYMENT

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1 FLSA AND WAGE PAYMENT EMPLOYMENT LAW CERTIFICATE SERIES: BUILDING WORKPLACES THAT WIN 12 AUGUST 2015 David Dubberly* and Jimmy Byars *Specialist in Employment and Labor Law

2 OVERVIEW FLSA review and enforcement trends Non-exempt employee issues Compensable time Fluctuating workweek method of computing overtime pay Main exemptions Proposed changes to some exemptions South Carolina Payment of Wages Act North Carolina Wage & Hour Act Exempt employee issues State wage payment laws 2

3 FLSA REVIEW AND ENFORCEMENT TRENDS 3

4 MAIN FLSA REQUIREMENTS Minimum wage for all hours worked Overtime pay at 1.5 times regular rate of pay for all hours worked over 40 in a workweek Exemptions Fluctuating workweek Youth employment Recordkeeping 4

5 ENFORCEMENT Wage and Hour Division of U.S. Department of Labor Investigations Lawsuits Injunctive relief Back wages and liquidated damages Private Lawsuits Back wages, liquidated damages, attorney s fees, and costs Collective actions U.S. Department of Justice Criminal prosecution and civil money penalties 5

6 WHD HAS BECOME MORE CREATIVE Resulting in more: WHD-initiated investigations Findings of violation Back wages collected From WHD website: 6

7 WHD HAS BECOME MORE CREATIVE DOL- Timesheet app Employees can track hours worked and overtime pay Links to info on wage and hour laws Provides WHD contact info and links Other apps Access to info about complaints and investigations 7

8 PRIVATE LAWSUITS CONTINUE TO INCREASE 2014 FLSA suits in federal court = 8, % increase in FLSA suits since settlements totaled $400M 8

9 PRIVATE LAWSUITS CONTINUE TO INCREASE Reasons: Key terms ambiguous Regulations change with different political administrations Increased awareness of wage and hour issues 9

10 PRIVATE LAWSUITS CONTINUE TO INCREASE Frequent complaints: Misclassification as exempt Misclassification as independent contractor Miscalculation of overtime rate Failure to pay minimum wage Non-exempt employees not paid for all hours worked 10

11 NON-EXEMPT EMPLOYEE ISSUES Compensable time Fluctuating workweek 11

12 COMPENSABLE TIME: WHAT S THE RULE? Hours worked includes all time suffered or permitted on employer s behalf. All time employee is necessarily required to be on the employer s premises, on duty or at a prescribed work place. Work doesn t have to be authorized to be compensable. Potentially big consequences for relatively small mistakes. 12

13 COMPENSABLE TIME: COMMON ISSUES Pre-shift and post-shift activities Donning and doffing Security lines Computer log on/off Checking Training time and travel time De minimis time 13

14 COMPENSABLE TIME: PRE/POST SHIFT ACTIVITIES Portal to Portal Act Are the pre/post shift activities integral and indispensable to the employee s principal activities? 2-part test: 1. Necessary to principal work 2. Performed primarily for employer s benefit Very fact-specific 14

15 COMPENSABLE TIME: PRE/POST SHIFT ACTIVITIES: EXAMPLES Donning and doffing clothing or PPE Passing through security Logging on/off computers Checking smartphones 15

16 COMPENSABLE TIME: CONTINUOUS WORKDAY Any time between the first duty and last duty is compensable. Examples: training, traveling between jobsites, waiting time, civic activities Understanding which pre/post shift activities are compensable is critical. 16

17 COMPENSABLE TIME: DE MINIMIS TIME 3 part-definition: 1. Insubstantial or insignificant period of time; 2. Outside of regular working hours; 3. Which cannot as a practical administrative matter be precisely recorded for payroll purposes. No hard and fast rules, but anything > 10 minutes is highly unlikely to be de minimis. High likelihood that it s not de minimis if many/all employees are affected on a regular basis. Example: Perez v. Mountaire Farms (2011) 17

18 FLUCTUATING WORKWEEK: WHAT IS IT? Permits non-exempt employees on a fixed salary to be paid a half time OT premium instead of time and a half. Assumes agreement that salary will compensate for all hours worked, regardless of how many. Can help control/predict OT costs. 18

19 FLUCTUATING WORKWEEK: REQUIREMENTS Salary basis = no deductions Clear mutual understanding of salary arrangement Arrangement should be in writing, but not required. Still must keep accurate records. 19

20 FLUCTUATING WORKWEEK: CALCULATING OVERTIME PREMIUMS Calculate regular rate = compensation / hours Half of regular rate = OT half time premium OT comp owed = OT half time premium x OT hours worked 20

21 FLUCTUATING WORKWEEK: EXAMPLE Regular OT Fluctuating workweek Straight- time rate $12.50/hour Straight- time rate $500/week Hours 48 Hours 48 Regular rate $12.50 Regular rate (Salary / hours worked) $10.42 OT premium (1.5x regular rate) $18.75 OT premium (0.5x regular rate) $5.21 OT comp owed (OT premium x OT hours) $18.75 x 8 = $150 OT comp owed (OT premium x OT hours) $5.21 x 8 = $41.67 Total compensation (straight time comp + OT comp) ($12.50 x 40 hours)+($150 for OT)= $650 Total compensation (straight time comp + OT comp) ($500/week) + ($41.67 for OT) = $ VS 21

22 FLUCTUATING WORKWEEK: POTENTIAL ISSUES Administrative complexity Improper deductions can have big consequences Some cases say hours must actually fluctuate above/below 40 Regular rate must never drop below minimum wage Morale/retention 22

23 EXEMPT EMPLOYEE ISSUES 23

24 PROPOSED CHANGES TO WHITE COLLAR EXEMPTIONS Increase minimum salary For Executive, Administrative, and Professional employees Currently $455/week ($23,600/year) Proposed change to approx. $970/week ($50,440/year) Set at the 40th percentile of weekly earnings for full-time salaried workers To be indexed to fixed percentile of weekly earnings or CPI May include non-discretionary bonuses Same change for computer employees paid on salary basis 24

25 PROPOSED CHANGES TO WHITE COLLAR EXEMPTIONS For Highly Compensated Employees Currently $100,000/year Proposed change to approx. 130,00/year, updated annually Set at the 90th percentile of weekly earnings for full time salaried workers To be indexed to fixed percentile of weekly earnings or CPI 25

26 PROPOSED CHANGES TO WHITE COLLAR EXEMPTIONS No change to duties tests But requested comments on possible changes DOL: A regularly updated salary level will assist in screening out employees who spend significant amounts of time on nonexempt duties. May add examples of how regulations play out in specific occupations, including computer-related fields No impact on outside sales exemption 26

27 PROPOSED CHANGES TO WHITE COLLAR EXEMPTIONS DOL estimates approx. 5 million workers classified as EAP exempt will be reclassified as non-exempt and earn overtime pay Comment period until September 4, 2015 Final revised regulations expected in

28 EXECUTIVE EMPLOYEES Minimum salary Paid on salary basis Duties Management: primary duty is management of business or recognized department or subdivision Supervision: customarily and regularly supervises work of two or more employees Authority: hires or fires employees Or recommendations given particular weight 28

29 JOBS THAT MAY QUALIFY Plant or store manager Department supervisor Construction project superintendent Bank collections department team leader *Depending on facts job title alone insufficient to establish status 29

30 JOBS THAT TYPICALLY DON T QUALIFY* Working foreman Relief supervisor Store manager who spends only small part of time on exempt work Collector of delinquent accounts 30

31 SALARY BASIS No reduction in pay for variations in quality or quantity of work Can reduce paid sick or personal leave time Pay full salary for any week in which any work performed, regardless of number of days or hours worked Don t have to pay for any week in which no work performed 31

32 PERMITTED DEDUCTIONS Full day absence for personal reasons Full day absence for sickness or disability if sick leave policy Offset for jury fees, witness fees, or military pay Penalties for violating safety rules of major significance Full day suspension for violating written workplace conduct rules Partial workweek during first or last week of work FMLA leave 32

33 SAFE HARBOR POLICY Exemption not lost over salary basis if: Clearly communicated policy prohibiting improper deductions with complaint mechanism Reimburse employees for improper deductions Good faith commitment to comply Not available if employer willfully violates policy by continuing to make improper deductions after complaints 33

34 ADMINISTRATIVE EMPLOYEES Minimum salary Paid on salary or fee basis Duties: primary duty is Performance of office or non-manual work Directly related to management or general operations of business 34

35 ADMINISTRATIVE EMPLOYEES Discretion: primary duty includes exercise of discretion and independent judgment regarding matters of significance Acts or makes decisions after various possibilities considered 35

36 JOBS THAT MAY QUALIFY HR manager Insurance claims adjuster Team leader for major projects Administrative assistant to senior executive Purchasing agent Dispatcher for trucking company 36

37 JOBS THAT TYPICALLY DON T QUALIFY* Inspector Examiner/grader Comparison shopper Personnel clerk 37

38 LEARNED PROFESSIONAL EMPLOYEES Minimum salary Paid on salary or fee basis Duties: primary duty is performance of work requiring advanced knowledge Work is predominantly intellectual and requires consistent exercise of discretion and judgment Advanced knowledge in field of science or learning customarily acquired by prolonged course of specialized intellectual instruction 38

39 JOBS THAT TYPICALLY QUALIFY* Medical doctor, osteopathic physician, podiatrist, dentist, optometrist Registered nurse Certified medical technologist Dental hygienist Certified physician assistant Pharmacist 39

40 JOBS THAT TYPICALLY DON T QUALIFY* Licensed practical nurse Nurse aide Paramedic Paralegal, legal assistant Engineering technician Accounting clerk, bookkeeper Cook 40

41 CREATIVE PROFESSIONAL EMPLOYEES Minimum salary Paid on salary or fee basis (film industry employees exempt from this) Duties: primary duty is performance of work requiring invention, imagination, originality, or talent in recognized field of artistic or creative endeavor 41

42 JOBS Typically Qualify* Musician, composer, conductor, soloist Novelist, play writer Writer for ad agency Actor Painter, photographer Investigative news reporter Typically Don t* Beat reporter 42

43 HIGHLY COMPENSATED EMPLOYEES Minimum salary At least $455/week paid on salary basis Likely approx. $970/week ($50,440/year) next year Including commissions, non-discretionary bonuses, and other non-discretionary compensation Excluding cost of benefits Duties: customarily and regularly performs at least one exempt duty of an EAP employee Primary duty includes performing office or non-manual work 43

44 COMPUTER EMPLOYEES (Other than those qualifying for EAP exemptions) Pay At least $27.63/hour for every hour worked, including overtime, or Salary or fee basis at least $455/week ($23,600/year) Likely approx. $970/week ($50,440/year) next year Duties Apply systems analysis techniques Design, document, analyze, create, or modify computer systems or programs 44

45 JOBS Typically Qualify* Computer systems analyst Most computer programmers Typically Don t* Entry level programmers Computer manufacture and repair CAD operators Help desk workers 45

46 COMMON ERRORS TO AVOID Assuming all employees paid salary are exempt Improperly applying exemption Making improper deductions from salary Job descriptions and employee handbook not up to date 46

47 STATE WAGE PAYMENT LAWS 47

48 SOUTH CAROLINA PAYMENT OF WAGES ACT Notify at time of hire in writing Wages and hours Time and place of payment Deductions from paychecks Policies on vacation, holiday, and sick leave Notify of changes other than raises in writing at least seven days in advance No deductions from wages unless Required or permitted by law Employee has been notified NOTE: includes forfeiture of PTO/vacation and must be present to win bonus policies 48

49 SOUTH CAROLINA PAYMENT OF WAGES ACT Upon termination for any reason All wages due must be paid within 48 hours or by next regular payday if within 30 days If disagreement on wages due Give written notice of employer s position Pay any amount conceded to be due Wages due times three Employee s attorney s fees and costs Potential personal liability for managers Damages for failure to pay may include 49

50 NORTH CAROLINA WAGE & HOUR ACT Notify at time of hire in writing Wages and hours Time and place of payment Deductions from paychecks Policies on vacation, holiday, and sick leave Notify of changes other than raises in writing at least 24 hours in advance PTO/vacation policy must address: 1. Accrual 2. Conditions of carry-over / forfeiture 3. Restrictions on use 4. Cash in lieu of time off? 50

51 NORTH CAROLINA WAGE & HOUR ACT Upon termination for any reason All wages due must be paid by next regular payday or next payday after calculable If disagreement on wages due Give written notice of employer s position Pay any amount conceded to be due Wages due times two Employee s attorney s fees and costs Deductions must be confirmed in writing Damages for failure to pay may include 51

52 QUESTIONS/COMMENTS? David Dubberly Jimmy Byars

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