Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

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1 Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

2 Audio will be broadcast through your speakers. If you cannot hear the audio, please check your speakers. Submit questions through the chat function. Today s session and the PowerPoint slides will be posted on HOUSEKEEPING Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

3 STEPHEN PASKOFF, ESQ. PRESIDENT & CEO, ELI CONNIE WALTERS, ESQ. GENERAL COUNSEL, ELI Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

4 WHY SHOULD THIS MATTER TO MY ORGANIZATION?

5 More than 70% of organizations get the FLSA wrong. In 2008, $185.2 million was collected in back wages for more than 228,000 employees. DOL hired an additional 288 investigators. STATISTICS Studies show that 76% of workers who worked overtime were not paid time and a half for it. Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

6 Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

7 Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

8 Wal-Mart Settles 63 Wage and Hour Class Actions for $640 Million

9 Cintas Settles Overtime Class Action for $22.75 Million

10 FLSA OVERVIEW

11 FLSA OVERVIEW The Fair Labor Standards Act (FLSA) is a federal law that sets minimum wage, overtime, recordkeeping, and youth employment standards. Employers generally classify employees as either exempt or non-exempt from overtime compensation. Non-exempt employees: Compensate employees at no less than minimum wage for all hours worked Pay time and a half for all hours over 40 hours in a workweek Minimum wage is $7.25 per hour Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

12 DAMAGES UNDER FLSA An employer who violates the FLSA is liable for unpaid wages, an additional amount as liquidated damages, and attorneys fees and costs. Unpaid wages are awarded for a two- or a three-year period depending upon whether the FLSA violation was willful. Liquidated damages are compensatory in nature and typically are awarded in an amount equal to unpaid wages. Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

13 STATE LAW Massachusetts, Arizona, and Idaho employees can now collect triple damages for violations of state wage payment laws. In North Dakota, employees can now collect triple damages for violations of state wage payment laws in certain circumstances. Arizona and Massachusetts wage and hour violations come with both civil and criminal penalties. Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

14 COMMON PITFALLS

15 Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

16 POLL QUESTION Should this salaried employee receive overtime pay? Yes No

17 MISCLASSIFICATION There are many classifications for exempt employees, but the following are the most common: Executive Administrative Professional Computer Employee Outside Sales Highly Compensated Employee Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

18 CLASSIFICATION In order to be properly classified as exempt under each of the exemptions, both a salary and duties test must be met. Executive Exemption: Paid on a salaried basis at a rate not less than $455 per week The employee s primary duty must be managing the organization or one of its departments or subdivisions The employee must typically and regularly manage two or more full-time employees or their equivalent The employee must have hiring or firing authority, or at least influence such decisions affecting other employees Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

19 Administrative Exemption: Paid on a salaried basis at a rate not less than $455 per week The employee s primary duty must be performing office or nonmanual work directly related to the management of general business operations of the employer or the employer s customers The employee must exercise discretion and independent judgment with respect to matters of significance in performing his or her primary duties Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

20 Learned Professional: Paid on a salaried or fee basis at a rate not less than $455 per week The employee s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment The advanced knowledge must be in a field of science or learning The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction Creative Professional: Paid on a salaried or fee basis at a rate not less than $455 per week The employee s primary duty must be the performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

21 Computer Employee Exemption: The employee must be compensated either on a salaried or fee basis at a rate not less than $455 per week or, if compensated on an hourly basis, at a rate not less than $27.63 an hour The employee must be employed as a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker in the computer field performing the duties Outside Sales Exemption: The employee s primary duty must be making sales, obtaining orders or contracts for services, or for the use of facilities for which a consideration will be paid by the client or customer The employee must be customarily and regularly engaged away from the employer s place or places of business Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

22 Highly Compensated Employee Exemption: Highly compensated employees should perform office or nonmanual work The employee should be paid a total annual compensation of $100,000 or more (which must include at least $455 per week paid on a salary or fee basis) They are exempt from the FLSA if they customarily and regularly perform at least one of the duties of an exempt executive, administrative, or professional employee identified in the standard tests for exemption Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

23 Merrill Lynch s Failure to Pay Overtime to Non-Hourly Employees Results in $37 Million Payout

24 Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

25 POLL QUESTION Should this hourly employee be compensated for doing work on his BlackBerry? Yes No

26 OFF-THE-CLOCK WORK An employer is responsible for paying employees for work that the employer asks the employee to perform, as well as for work that the employee voluntarily performs. Typical scenarios in which employees perform off-the-clock work are as follows: Employees work before and after their scheduled shift Employees engage in business-related travel Employees attend lectures, meetings, and training programs Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

27 NCR Settles Two Wage and Hour Class Actions for $12 Million

28 POLL QUESTION Savannah, one of your nonexempt employees, gets a call from a client asking for important documents by the end of the day. She says, I just worked through lunch to get it all done because I didn t want to stay late and miss my tennis lesson. Should she be paid overtime? Yes No

29 MEALS AND BREAKS Meal periods of 30 minutes or more are generally non-compensable time. If meal periods are interrupted by work, then the meal period is likely to be regarded as compensable work time. Only breaks that are long enough for an employee to use the time effectively for what he/she chooses to do are non-compensable. Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

30 Saint-Gobain to Pay $625,000 for Automatically Docking Employees for Meal Breaks

31 Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

32 POLL QUESTION Should this employee be allowed to use comp time when he goes on vacation? Yes No

33 COMPENSATORY TIME Compensatory time allows workers to take time off in a subsequent workweek, instead of receiving overtime pay for overtime hours worked in the current workweek. Private employers cannot use comp time to compensate employees for overtime. Any hours worked in excess of 40 in a workweek must be paid for in cash. Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

34 Bank of America Facing FLSA Collective Action for Allegedly Providing Comp Time in lieu of Overtime Pay

35 Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

36 POLL QUESTION Is this individual an independent contractor? Yes No

37 INDEPENDENT CONTRACTORS The DOL considers the following when determining independent contractor status: The extent the services are integral to the business Permanency of business Nature of degree and control of principal Contractor s opportunity for profit/loss How much initiative and judgment is required for success as a contractor Degree of independent business organization and operation Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

38 FedEx Ground Sued by Independent Contractors for More Than $1 Billion

39 AVOIDING LIABILITY

40 WAYS TO AVOID LIABILITY Conduct an internal audit to ensure employees are properly classified. Review and update employee job descriptions on a regular basis. Organizations should not ask or permit employees to perform work outside of their scheduled work hours (meals and breaks), unless overtime is approved in advance. Even if your organization s policy does not allow employees to work overtime without advance approval, Get Help before refusing to pay for such overtime. Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

41 WAYS TO AVOID LIABILITY Managers should actively monitor the workplace to ensure that all employee work time is accurately recorded. Organizations should make sure all employees are properly trained on how to record time. Organizations should continuously remind employees of the importance of recording all time worked. Do not pressure non-exempt employees to complete work activities within timeframes that would require them to work off the clock. Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

42 WAYS TO AVOID LIABILITY Do not provide comp time to employees in lieu of overtime pay. Involve Legal Counsel if risk areas are identified. Educate managers about the FLSA. Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

43 BRIGHT IDEAS FOR IMPLEMENTING A SUCCESSFUL FLSA PROGRAM

44 IMPLEMENTING A SUCCESSFUL FLSA PLAN Reasons for training Importance of content Online versus instructor-led Implementation planning JOE FREEMAN, ESQ. COX COMMUNICATIONS, INC. Follow up Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

45 Instructor-led training Focuses on law and behaviors Customizable to your organization For more information visit ELI S SOLUTION Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

46 CONTACT ELI Copyright September 2009 All Rights Reserved Employment Learning Innovations, Inc. Atlanta, Georgia

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