HOT GOODS AND FAIR LABOR STANDARDS ACT COMPLIANCE

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1 HOT GOODS AND FAIR LABOR STANDARDS ACT COMPLIANCE TEXAS WINE AND GRAPE GROWERS ASSOCIATION ANNUAL CONVENTION--FEBRUARY 19, 2015 Presented by: Ann Abrams Price, Esq. Boulette Golden & Marin

2 AGENDA Fair Labor Standards Act Overview Recent Developments of Interest to the Industry Self-Reflection Coverage Exemptions Consequences Q&A 2

3 FAIR LABOR STANDARDS ACT Enacted in 1938 Most employers are covered, but some are exempt Minimum wage - $7.25/hour Youth minimum wage - $4.25/hour (IF all requirements are met) Overtime time and one-half the regular rate for hours over 40 in a workweek 3

4 FAIR LABOR STANDARDS ACT Some employees of covered employers are exempt from minimum wage and/or overtime Child labor restrictions Recordkeeping obligations Break time for nursing mothers Equal Pay Act No retaliation 4

5 RECENT DEVELOPMENTS Summer 2012, Oregon blueberry farmers are visited by the DOL DOL analyzed production and set a production standard, e.g. 50 lbs/hour Some workers were recording 80 lbs/hour ($15-$20/hour for some) Piece rate illustration, assuming $0.12/lb and 8 hours - $48 v. $76.80 Minimum wage = $58 5

6 RECENT DEVELOPMENTS DOL alleges unrecorded ghost workers DOL claimed farm owners did not pay workers minimum wage DOL issued hot goods objections and notified prospective purchasers Illegal to ship goods in commerce produced in violation of minimum wage and overtime 6

7 RECENT DEVELOPMENTS Farmers have approximately $6M in berries in danger of over ripening and rotting DOL offers to lift the hot goods objection if the farmers Pay approximately $220,000 in back wages and penalties, and Waive the right to challenge the DOL s methodology and conclusions 7

8 RECENT DEVELOPMENTS Farmers capitulate, one claims a loss of almost $90K on spoiled berries Farmers try to find out more from DOL on ghost workers and change in policy on use of hot goods objections on perishables In the past, employers were allowed to escrow alleged back pay and penalties pending resolution 8

9 RECENT DEVELOPMENTS One year later, August 2013, the farmers sue to vacate the consent decrees on account of fraud, misrepresentation, or misconduct On January 14, 2014, U.S. Magistrate Judge agrees: DOL s imposition of the hot goods objection to highly perishable goods and requirement of immediate admission of defeat without any recourse to the courts unfairly stacked the deck against [the farmers] 9

10 RECENT DEVELOPMENTS On April 24, 2014, U.S. District Judge agrees DOL tries to make new allegations against the farmers, going back further in time While DOL could not identify many of the approximately 1,000 alleged ghost workers, it distributed $73,500 Last month, a settlement was reported. DOL will repay the farmers and pay each and additional $30,000 10

11 ARE YOU IN COMPLIANCE? Do you pay your employees at least $7.25/hour? Do you pay your employees timeand-a-half for hours worked over 40 in a workweek? Do you keep records of hours worked? Do you keep records of pay rates, names, birthdates (under 19), and addresses? 11

12 ARE YOU IN COMPLIANCE? If not, why not? Do you think your business is not covered by the FLSA? Do you think some or all of your employees are exempt? Were you misinformed? 12

13 FLSA COVERAGE BASICS Enterprise coverage applies to An enterprise activities performed for a common business purpose that has Employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and An annual gross volume of sales made or business done of $500,000 or more (exclusive of excise taxes at the retail level that are separately stated) 13

14 FLSA COVERAGE BASICS Handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person So broadly interpreted that most enterprises that meet the dollar volume test will be covered For example, sanitation workers use of cleaning supplies that had moved in interstate commerce was sufficient to trigger coverage 14

15 FLSA COVERAGE BASICS Enterprise coverage employees are protected by the FLSA regardless of the nexus between their individual job duties and commerce (unless otherwise exempt) Individual coverage if no enterprise coverage, employees must be individually engaged in commerce or the production of goods for commerce to be protected (unless otherwise exempt) 15

16 FLSA COVERAGE BASICS Individual coverage Engaging in commerce includes Using the mail and telephone for interstate communications (the Internet?) Ordering supplies from out of state Travelling across state lines 16

17 FLSA COVERAGE BASICS Individual coverage Goods are produced for commerce if the employer Intends, hopes, expects, or has reason to believe that the goods will move (in the same or in an altered form or as a part or ingredient of other goods) in interstate or foreign commerce Regardless of who puts the goods in interstate of foreign commerce 17

18 FLSA EXEMPTION BASICS Certain agricultural workers are exempt from minimum wage and overtime Employees employed by an employer who did not utilize 500 man days of agricultural labor in any calendar quarter of the preceding calendar year A man day is any day during which an employee performs agricultural work for at least one hour (~6 employees/day) 18

19 FLSA EXEMPTION BASICS Certain agricultural workers are exempt from minimum wage and overtime Employees who are the parent, spouse, child, or other member of their employer s immediate family Local piece rate employees employed in agriculture less than 13 weeks during the preceding calendar year Certain non-local children of piece rate workers 19

20 FLSA EXEMPTION BASICS Otherwise, agricultural workers are exempt from overtime only Note, employees whose jobs are related to agriculture but do not constitute agriculture as defined in the FLSA are not exempt from overtime 20

21 FLSA EXEMPTION BASICS Executive, Administrative, Professional, and Computer Exempt White Collar Three tests all must be satisfied Compensation level $455 per week Compensation basis Salary (All) Fee (Administrative and Professional Only) Primary job duties vary by exemption 21

22 WHITE COLLAR EXEMPTIONS Salary Basis Test Predetermined amount not subject to reduction because of variations in the quality or quantity of work performed Unless a deduction is specifically permitted, must pay the full salary for any workweek in which the employee performs any work Need not pay for any workweek when no work is performed 22

23 WHITE COLLAR EXEMPTIONS Salary Basis Permitted Deductions Full day absences for personal reasons other than sickness or disability Full day absences due to sickness or disability under a bona fide system for replacement wages To offset amounts received as jury fees, witness fees or military pay 23

24 WHITE COLLAR EXEMPTIONS Salary Basis Permitted Deductions Penalties imposed in good faith for violating safety rules of major significance Full day disciplinary suspension imposed in good faith for violations of written workplace conduct rules Proration in first or last week Unpaid FMLA leave 24

25 WHITE COLLAR EXEMPTIONS Executive Primary Duty Managing the enterprise or a customarily recognized department or subdivision Customarily and regularly direct the work of at least 2 full-time employees or the equivalent Have the authority to hire or fire or recommendations are given particular weight 25

26 WHITE COLLAR EXEMPTIONS Administrative Primary Duty Performance of office or non-manual work directly related to management or general business operations Exercise of discretion and independent judgment with respect to matters of significance 26

27 WHITE COLLAR EXEMPTIONS Learned Professional Primary Duty Performance of work requiring advanced knowledge in a field of science or learning Customarily acquired by a prolonged course of specialized intellectual instruction Consistent exercise of discretion and judgment 27

28 WHITE COLLAR EXEMPTIONS Artistic Professional Primary Duty Performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic endeavor Music Writing Acting Graphic arts 28

29 WHITE COLLAR EXEMPTIONS Computer Exempt Primary Duty The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications 29

30 WHITE COLLAR EXEMPTIONS Computer Exempt Primary Duty The design, documentation, testing, creation or modification of computer programs related to machine operating systems A combination of the above which requires the same level of skills Not repair, help-desk, or CAD workers 30

31 FLSA EXEMPTION BASICS Highly Compensated Employee Employee receiving $100,000/year is deemed exempt if he customarily and regularly performs one or more of the exempt duties of the executive, administrative or professional exemptions 31

32 FLSA EXEMPTION BASICS Outside Sales Primary Duty Making sales or obtaining orders for services or for the use of facilities Customarily and regularly engaged away from the employer s place of business for example, door to door or at the customer s place of business fixed sites are considered the employer s place of business 32

33 CONSEQUENCES Statute of limitations 2 years 3 years if willful DOL audit or investigation May or may not be complaint based Criminal fines and imprisonment Litigation Individual plaintiff or collective action (opt in) 33

34 CONSEQUENCES Unpaid wages Liquidated damages in the amount of unpaid wages, unless employer can show good faith Attorney s fees Injunctions FLSA litigation has grown exponentially 34

35 HOT GOODS AND FAIR LABOR STANDARDS ACT COMPLIANCE THIS PRESENTATION IS NOT INTENDED TO SERVE AS A SUBSTITUTE FOR LEGAL ADVICE. FOR ADVICE SPECIFIC TO A GIVEN SITUATION, PLEASE CONSULT WITH AN ATTORNEY. Presented by: Ann Abrams Price, Esq. Boulette Golden & Marin

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