Compensation and Salary Administration

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1 Compensation and Salary Administration 1

2 Ori Murdock, SPHR HR Manager of G&A Partners Provides HR assistance and support to over 250 companies through out Texas and various other states. Over 15 years of HR experience Practices HR in California, Florida and Texas Education University of Houston, Management B.B.A Senior Professional in Human Resources Global Professional in Human Resources Active member of the Society of Human Resource Management Active member of HR Houston 2

3 Agenda Overview of Federal Law Fair Labor Standards Act (FLSA) Comp Time Exemptions from Overtime Overview of State Law Texas Payday Law Texas Child Labor Law Other Applicable Laws Additional Resources Q&A 3

4 Overview of Federal Law 4

5 The Fair Labor Standards Act (FLSA) Requirements: Payment of minimum wage, Overtime pay for time worked over 40 hrs/wk, Restrictions on the employment of children; and Recordkeeping for non-exempt employees, Some states have their own overtime laws that are different from the federal guidelines. August 23, 2004: new regulations for exemptions. 5

6 FLSA Does not require: Vacation, holiday, severance or sick pay; Meal or rest periods, holidays off or vacation days; Premium pay for weekends or holiday work; Pay raises or fringe benefits; A written reason notice of discharge. Does not limit number of hours in a day or days in a week an employee may be required to work if at least 16 years old. Note: The above matters may be covered by state laws. 6

7 FLSA Employment relationship required in order for FLSA to apply. Employment relationship is determined by a number of legal factors created by case law and it is based on a factual inquiry or case by case analysis into the relationship. FLSA does not apply to independent contractors. They are not employees 7

8 FLSA Factors to determine independent contractor vs. employment relationship The permanency of the relationship; The amount of the alleged contractor s investment in facilities and equipment; The nature and degree of control of the principal; Whether the alleged contractor shares in profits and losses; Whether the alleged contractor has to use its initiative, judgment, or foresight on behalf of the business; The degree of independent business organization and operation of the alleged contractor. 8

9 FLSA Minimum Wage and Overtime Basics: Minimum wage is at least $5.15/hr; $5.85 effective July 24, 2007 $6.55 Summer of 2008 $7.25 Summer of 2009 Overtime pay is required at a rate of one and one-half times the regular rate of pay after 40 hours of work in a workweek. Some states have set a higher level; however, Texas has adopted federal standards; 9

10 FLSA: Comp Time Only for public sector Federal State City Big no-no for private employers Even after having taken the comp time, the employer may still be required to go back and pay the employee the overtime. 10

11 FLSA Exemptions from minimum wage: Youth minimum wage employees under 20 years of age, federal sets the minimum at $4.25/hr. May only be paid for the first 90 days of employment; Note: Employer may not displace one worker who is paid more in order to pay another worker the lower wage. Tipped employee Employees who regularly receive tips as part of his/her pay gets a minimum wage of $2.13/hr. Employee must regularly receive more than $30/month on tips and must be allowed to keep all tips earned. Combined tips plus wages must add up to at least the $5.15/hr minimum. 11

12 FLSA Exemptions from both minimum wage and overtime pay: Executive, Administrative and Professional employees; Outside sales employees; Certain computer-related occupations. *There are additional exemptions not discussed herein. 12

13 FLSA Overtime Pay Provisions: Unless exempt, employees must receive overtime pay for hours worked in excess of 40 hours in a workweek; No limit on number of hours employee may work overtime; Law does not require overtime pay for work on Saturdays, Sundays or holidays; The regular rate of pay cannot be less than the minimum wage. 13

14 FLSA Typical Problems with Overtime Pay: Paying a fixed salary for a work week longer than 40 hours does not discharge FLSA legal obligations; Overtime requirement may not be waived by agreement between employer and employees; A policy that no overtime work will be paid cannot impair the employee s right to compensation if the employee worked the hours. 14

15 FLSA Exemptions from Overtime Executive Employee Exemptions: Employee must be compensated on a salary basis at a rate not less than $455/week; Primary duty must be managing the enterprise or a department or subdivision; Must direct the work of at least two or more full-time employees; Must have the authority to hire or fire other employees. 15

16 FLSA - Exemptions from Overtime Definition of management : Interviewing and training employees, Setting salaries, Directing work, Appraising employees, Handling employee complaints, Planning the work, Disciplining, Control flow of work, Implementing legal compliance measures. 16

17 FLSA - Exemptions from Overtime Exemption of Business Owners: Under a special rule for business owners, an employee who owns at least 20% interest in an enterprise in which employed and who is actively engaged in the management is considered a bona fide exempt executive. 17

18 FLSA - Exemptions from Overtime Administrative Employee Exemption: Must be compensated on a salary basis not less than $455/week; Primary duty must be the performance of office or nonmanual work related to the management or general business operations of the employer or customers (thus employees acting as advisors or consultants to employer s clients may be exempt); Primary duty includes exercise of discretion and independent judgment. 18

19 FLSA - Exemptions from Overtime Learned Professional Employee Exemption: Must be compensated on a salary basis not less than $455/week; Primary duty must be the performance of work requiring advanced knowledge, predominately intellectual in character; Advanced knowledge must be in science or learning. 19

20 FLSA - Exemptions from Overtime Creative Professional Employee Exemption: Must be compensated on a salary basis not less than $455/week; Primary duty must be the performance of work requiring invention, imagination or talent in a field of artistic or creative endeavor. 20

21 FLSA - Exemptions from Overtime Computer Employee Exemption: Must be compensated either on a salary basis at a rate of $455/week or if on an hourly basis at a rate not less than $27.63/hr; Must be employed as a computer system analyst, computer programmer, software engineer, or other similarly skilled work in the computer field. Excludes employees who engaged in the manufacture or repair of computer hardware or related equipment. Excludes employees whose work is dependent upon or facilitated by the use of computers and computer software programs (e.g., engineers, drafters, graphic designers) and who are not primarily engaged in computer system analysis and programming. 21

22 FLSA - Exemptions from Overtime Outside Sales Employee Exemption: Primary duty must be making sales or obtaining orders or contract for services and must be customarily and regularly engaged away from the employer s place or places of business. 22

23 FLSA - Exemptions from Overtime Highly Compensated Employee Exemption: Performing office or non-manual work and paid total annual compensation of $100,000 or more; Must perform at least one of the duties of Executive, Administrative or Professional employees. Exemption does not apply to blue collar workers who perform work involving repetitive operations with their hands, physical skill, and energy. Examples: carpenters, electricians, mechanics, plumbers, construction workers. Exemption do not apply to police officers, detectives, sheriffs, investigators, firefighters, paramedics, or any kind of rescue or crime-related job. 23

24 FLSA Definition of salary basis for exempt employees: An employee regularly receives a predetermined amount of compensation each pay period on a weekly, bi-weekly, semi-monthly or monthly basis. The predetermined amount cannot be reduced because of variations in the quality or quantity of the work. Subject to exceptions, an exempt employees must receive the full salary for any week worked regardless of number of days or hours worked. 24

25 FLSA Allowable Deductions from Minimum Wage- Nonexempt: Under restricted circumstances, employers may deduct the reasonable costs of meals, lodging and other facilities furnished to the employee in connection with the employment (Under Texas law the authorization must be in writing.) Voluntary wage assignments i.e., contributions to health and retirement plans; Loans and wage advances; Vacation pay advances; Wage overpayment; Under severely restricted circumstances, reasonable costs of uniforms; 25

26 FLSA Allowable Deductions Continued Employee payroll taxes; Union dues; Court-ordered garnishment; Cash register shortages and loss of money that are proven as a result of theft from employee (cannot reduce wage below minimum wage); Note: All of these deductions must be authorized by employee in writing, except for court ordered garnishments, IRS liens, FICA taxes, guaranteed student loans wage attachments. 26

27 FLSA TIP: It is best to have all employees sign a wage authorization deduction agreement listing all the various types of deductions that might be made. In addition, certain deductions should be individually authorized in writing to give the employer the greatest amount of protection, such as loans or wage advances. 27

28 FLSA Exempt Salary Deductions: When employee is absent from work for one or more full days for personal reasons other than sickness or disability; For absences of one or more full days due to sickness or disability; To offset amounts employees receive as jury or witness fees or for military pay; For penalties imposed in good faith for infractions of safety rules of major significance; Unpaid disciplinary exemptions of one or more full days; Not required to pay full salary in the initial or last week of employment; Not required to pay salary for weeks taken under FMLA. No partial day deductions for exempt employees 28

29 FLSA Effect of Improper Deduction from Salary: Lose the exemption during the time period of the improper deduction. For all employees in the same job classification working for the same manager responsible for the improper deduction. TIP: Isolated or inadvertent deductions will not cause loss of exemption if employer reimburses the employee. 29

30 FLSA Safe Harbor Rule: If an employer: 1. has a clearly communicated policy prohibiting deductions, including a complaint mechanism; 2. reimburses the employee for improper deduction; and 3. makes a good faith commitment to comply in the future; Then the employer would not lose the exemption. 30

31 FLSA Employer Recordkeeping Requirements: Employee s full name and social security number; Address, including zip code; Birthdate if younger than 19; Sex and occupation; Time and date of week when employee s work week begins; Hours worked each day; Total hours worked each workweek; Basis on which employee s wages are paid; 31

32 FLSA Employer Recordkeeping Requirements Continued Regular hourly pay rate; Total daily or weekly earnings; Total overtime earnings for the work week; All additions to or deductions from the employee wages; Total wages paid each pay period; Date of payment and pay period covered by payment. 32

33 FLSA What about timekeeping? May use any timekeeping method the employer chooses. How long do the records need to be retained? 3 years for payroll records 2 years for work and time schedules and deductions from wages 33

34 FLSA Wage Garnishment: Definition any legal procedure through which some of a person s wages are withheld by the employer to pay a debt (i.e., IRS tax liens, child support payments). Title III of the Consumer Credit Protection Act regulates wage garnishments. The law protects everyone receiving personal earnings (i.e., wages, salary, commissions, bonuses, or any other income). 34

35 FLSA Restrictions on Wage Garnishment: Amount of pay subject to garnishment is based on employee s disposable earnings (after taxes are taken out). The law sets the maximum amount that may be garnished on any work week or pay period regardless of the number of garnishment orders received by employer (approximately 25%). As to child support and alimony, specific laws apply allowing up to 50% of disposable earnings. Note: If a state wage garnishment law differs from the CCPA the smaller garnishment must be observed 35

36 FLSA Enforcement: Carried out by investigators stationed across the U.S. Violation to fire or in any other manner discriminate against an employee for filing a complaint. Willful violations may be prosecuted criminally and violators may be fined up to $10,000. Violators of the youth employment provisions are subject to a civil money penalty of up to $11,000 for each employee. 36

37 Overview of State Law 37

38 Texas Payday Law Chapter 61 of the Texas Labor Code: Except for public employers, all Texas businesses regardless of size are covered. Applies to all persons that perform services for compensation, other than independent contractors. Enforced through the Texas Workforce Commission. 38

39 Texas Payday Law Rights, Duties, and Obligations: Exempt employee must be paid at least once a month; Non-exempt employees must be paid at least twice a month; Employer may designate any paydays he/she chooses (if not designated, payday is the 1 st and 15 th of each month); Notices indicating payday must be posted in the workplace; If an employee quits, he/she must be paid in full the next regular payday. If employee is terminated, employee must be paid within the next 6 days. 39

40 Texas Payday Law Payment of Wages: Wages include commissions and bonuses and any kind of compensation such as fringe benefits. Wages must be delivered during employee s regular place of work or mailed by registered mail not later than pay day. 40

41 Texas Payday Law Deductions from Wages: Employer may not make deduction unless: ordered to do so by court, authorized by state and/or federal law, or authorized in writing by the employee. 41

42 Texas Payday Law Penalties: Civil penalties of $1,000 or the amount of wages owed, whichever is less; 3 rd degree felony if employer hires an employee or continues to employ an employee with intention to not pay employee. 42

43 Texas Child Labor Law Chapter 51 of Texas Labor Code: Child is defined as anyone under 18 years of age; Illegal to employ a child less than 14 years of age unless a performer in motion picture, television, theatre, radio, etc; Restricts the hours of employment and lists the permitted and prohibited occupations that a child can work. 43

44 Applicable Laws Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201 et.seq.) Chapter 61 of the Texas Labor Code (payment of wages) Chapter 62 of the Texas Labor Code (minimum wage) Chapter 51 of the Texas Labor Code (employment of children) The Family and Medical Leave Act (29 U.S.C et.seq.) The Equal Pay Act (29 U.S.C. 206) The Consumer Credit Protection Act (15 U.S.C et.seq.) 44

45 Additional Resources 45

46 Q&A Visit for a recording (audio and video) of this webinar For more information, contact Anthony Grijalva, or 46

47 G&A Partners Position your company for success 47

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