Wage & Hour Issues in Today's A/E Industry Hosted By ACEC Washington

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1 Wage & Hour Issues in Today's A/E Industry Hosted By ACEC Washington September 5, 2012 David K. Eckberg & Kara R. Masters Skellenger Bender, P.S

2 Background Legal Overview FLSA Washington Law Understanding the White Collar Exemptions Salary v. Hourly Issues Common Compliance Problems with Engineers The Anatomy of a Wage & Hour Claim How to Keep your House in Order

3 What s the Big Deal? o Unstable Economy o Wage Growth Minimal or Non-Existent o Employee Terminations o Perceptions that Employers are out of Compliance o DOL Statistics o DOL Smartphone Application

4 Federal: o Fair Labor Standards Act o 29 USC 201, et seq. & 29 CFR Parts o Department of Labor, Wage & Hour Division State: o Washington Minimum Wage Act o RCW 49.46, et seq & WAC et seq. o Department of Labor & Industries, Wage & Hour Division Which law is most protective of the employee? That is the law that applies, e.g., Highly Compensated Employees

5 Federal Minimum Wage: $7.25/hour Overtime: 1 ½ times the regular rate of pay for all hours over 40 hours in a work week

6 Washington Minimum Wage: $9.04/hour Overtime: 1 ½ times the regular rate of pay Overtime: 1 ½ times the regular rate of pay for all hours over 40 hours in a work week

7 Both the FLSA and MWA provide exemptions from both minimum wage and overtime pay for employees in a bona fide: Executive Administrative Professional Outside Sales capacity FLSA also exempts certain computer employees

8 All Require Compensation on Salary or Fee Basis Pay Particular Attention to Washington Interpretations

9 FLSA: 1) Primary duty is management of enterprise or a recognized department or subdivision 2) Customarily and regularly directs work of two or more employees (FTE) 3) Authority to hire or fire employees or his/her recommendations as to hiring, firing, promotion or other change of status of employees is given particular weight

10 Washington Short Test (over $250) 1) Management of the enterprise in which he is employed or of a customarily recognized department or subdivision 2) Customary and regular direction of the work of two or more other employees

11 Engineering Industry (Job Title not Conclusive) o President/CEO o Office Managers o Division Managers/Market Managers o Overhead Functions: Human Resources Accounting Legal Marketing Department IT

12 FLSA Primary duty is performance of office or nonmanual work directly related to management or general business operations of employer or employer s customers Includes exercise of discretion and independent judgment with respect to matters of significance

13 Washington Short Test Same as Federal except that exercise of discretion and judgment not tied to matters of significance

14 Engineering Industry Executive Assistants Management Assistants Project Assistants includes exercises discretion and independent judgment

15 FLSA Learned Professional : Primary duty is performance of work requiring knowledge of advanced type in field of science or learning (includes engineering, architecture, chemical & biological sciences) acquired by prolonged course of specialized intellectual instruction Creative Professional : Primary duty is performance of work requiring invention, imagination, originality or talent in recognized field of artistic or creative endeavor (music, writing, acting & graphic arts)

16 Washington Short Test o Primary duty consists of the performance of work either: Requiring knowledge of an advanced type in a field of science or learning which includes work requiring the consistent exercise of discretion and judgment; or Requiring invention, imagination or talent in a recognized field of artistic endeavor Recent case Litchfield v. KPMG

17 Engineering and Consulting Industry o EIT s o PE s o Geologists o Licensed Geologists/Hydrogeologists o Biologists o Environmental Professionals o Others

18 To Qualify for any of the White Collar Exemptions, must be paid on Salary or Fee Salary Defined: (minimum $455 per week) Regularly receives pre-determined amount of compensation each pay period Compensation cannot be reduced because of variations in quality or quantity of work Any work in a week = full weekly salary No work in a week = need not pay

19 PERMISSIBLE DEDUCTIONS: o One or more full days for personal reasons (no partial days) o Partial day deductions OK for leave taken under the Family and Medical Leave Act o Safety violations/ workplace conduct rule infractions o Federal OK o Washington Only major safety

20 PERMISSABLE DEDUCTIONS: o Bona Fide Leave Policy o Less than One Day Increments from Leave Bank if OK in Policy o At least One Day Increments if Bank is Depleted o Sick/Safe/Personal

21 PERMISSABLE ADDITIONS Contrary to previous interpretations of the FLSA, it is OK to compensate Salaried Employees for work over 40 hrs in one week without losing exemption Can be comp time, straight hourly rate, 1 ½ times hourly rate, or fixed fee Can account for all hours worked by salaried employees without losing exemption

22 Proper Treatment of Hourly Employees Hours worked: all work requested, suffered, permitted or allowed and includes travel time, training, meeting times, wait time, on call and may include meal times. Travel time authorized, on duty and at a prescribed workplace? Training/Meetings Attendance voluntary? Outside of regular working hours? No productive work? Directly related to Employee s Work State Mandated Training Meal Time

23 Company Policy that Requires Prior Approval of Overtime Hours or prohibits work over 40 Hours: o If work is completed regardless of compliance with policy, work must be compensated at overtime rate. Meal and Rest Periods o 30 minutes meal period for every 5 hrs of work o 10 minute rest period for every 4 hrs of work

24 Treating All Employees as Exempt Smaller firms Paying All Employees on an Hourly Basis Impact of Federal Acquisition Regulations Poor Recordkeeping regarding Hours Worked Calculating Hours for OT All Hours?

25 Improper Application of Administrative Exemption Project Assistants Others Improper Application of Professional Exemption Improper Application of Professional Exemption In Training Licensed Professionals Junior Professionals (unlicensed)

26 Investigation Enforcement Actions Penalty

27 Federal DOL Wage & Hour Division Confidential Complaint or DOL Business Selection WHD advises employers of the steps needed to correct violations secures agreement to comply in the future supervises voluntary payment of back wages as applicable

28 State - Department of Labor & Industries, Wage & Hour Division Non-Confidential Complaint Wage Payment Act Investigation - Citation or No Violation Acceptance of payment precludes further action Civil penalty waiver for payment within 10 days No criminal penalty

29 State - Department of Labor & Industries, Wage & Hour Division Wage Payment Act Investigation - Citation or No Violation All decisions appealable Employee opt out within 10 days SOL 3 years

30 Federal or State Agency Action Private Lawsuit Small Claims/Civil Suit Class Actions

31 Federal Government Action DOL Suit Secretary of Labor Suit on behalf of employees for back wages and equal amount in liquidated damages Court injunction to restrain any person from violating minimum wage and overtime laws Civil money penalties for repeat and/or willful violations of FLSA s minimum wage or overtime requirements Criminal penalties, including fines and prison, for employers who have willfully violated the law State Government Action: Under Wage Payment Act, Admin Process Only

32 Federal Employee may file suit to recover back wages and equal amount in liquidated damages, plus attorney s fees and court costs Employee may not bring suit if he or she has accepted back wages under the supervision of WHD or if the Secretary of Labor has already filed suit to recover the wages

33 Washington Employee must opt out within 10 days of citation Employee can ask for double wages owed where the worker believes that the employer willfully failed to pay wages owed, plus attorney fees and court costs Employee can file small claim for back wages less than $5000

34 Back Pay Interest Double Damages Civil Penalties Criminal Prosecution Criminal Prosecution Attorneys Fees State Violations Posting

35 Avoid Common Errors Assuming that all employees paid salary are not due overtime Improperly applying exemptions Failing to pay for all hours employee is suffered or permitted to work Limiting number of hours employees are allowed to record Failing to include all pay required to be included in calculating regular rate for overtime

36 Avoid Common Errors Failing to add all hours worked in separate establishments for same employer when calculating overtime Making improper deductions from wages Treating employee as independent contractors-- Understand the difference

37 Periodically Do an Assessment of your Staff to Evaluate Compliance with Exemptions Keep Your Staff Informed with Periodic Updates (avoid the perception issue) Keep Complete Time Records for All Employees Employers are not required to maintain payroll records for exempt employees. But: Burden on Employer

38 Review and Modify your Policies Annually This is very important Carefully Plan Response to Any Complaint Contact counsel any time you receive a complaint Take precautions to make sure employees who have complained are not mistreated

39 Thank you for attending David K. Eckberg & Kara R. Masters Skellenger Bender, P.S

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