Timekeeping and the Law

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1 Timekeeping and the Law February 7, Washington, DC Brussels San Francisco Shanghai Crystal N. Skelton Michael F. Morrone Manesh K. Rath Keller and Heckman LLP 1001 G Street NW Suite 500 West Washington, DC (202) A Preliminary Word This presentation provides information about the law. Legal information is not the same as legal advice, which involves the application of law to an individual's specific circumstances. The interpretation and application of the law to an individual s specific circumstance depend on many factors. This presentation is not intended to provide legal advice. 2 1

2 Timekeeping and the Law Overview: FLSA Coverage Workweek Minimum wage Overtime Records and Recordkeeping Recent Enforcement 3 What is the Fair Labor Standards Act? 4 2

3 Fair Labor Standards Act of 1938 FLSA administered by Wage and Hour Division of Department of Labor Establishes standards for: Minimum Wage Overtime Pay Recordkeeping Youth Employment Equal Pay 5 Who is Covered? More than 130 million workers, both full-time and part-time, are covered by the FLSA 6 3

4 Coverage Two types of coverage 1. Enterprise coverage: If enterprise covered, all of its employees entitled to FLSA protections 2. Individual coverage: Even if enterprise is not covered, individual employees may be covered & entitled to FLSA protections 7 FLSA Enterprise Coverage Enterprise with: At least 2 employees; and Either Engages in interstate commerce; or Gross >$500,000/yr in business If enterprise coverage exists, all employees of that enterprise are subject to the FLSA 8 4

5 FLSA Individual Coverage Covers individual workers involved in interstate commerce What is interstate commerce? Chauffeurs covered if: Cash wages from 1 employer at least $1,800/yr (for 2012) Work more than 8 hrs/wk 9 Notable FLSA Exemptions Exemption White Collar Employees - Administrative Employees - Professional Employees - Executive Employees Interstate Motor Carrier Outside Sales Employees Commissioned Sales Taxi Cab What is Exempt? Minimum Wage; Overtime Overtime Minimum Wage; Overtime Overtime Overtime 10 5

6 THE WORKWEEK 11 The Workweek What is a workweek? 7 consecutive 24-hr periods May begin any hour of day Need not coincide with calendar 12 6

7 Minimum Wages

8 Minimum Wages Federal minimum wage = $7.25/hr effective July 24, 2009 Tipped employees Customarily & regularly receive > $30/month in tips Employers must pay a direct wage of at least $2.13/hr if they claim a tip credit

9 Minimum Wages cont d DOL Sept Opinion Letter Gratuities imposed upon customers tip DOL Nov Letter Discretionary gratuities = tip May not be subject to overtime But, it depends on the facts in each case Key is customer discretion, notice, & variation in amts Compulsory gratuities (i.e., mandatory 15% of bill) tip: Considered part of employee wages and is subject to overtime 17 Notice Notice to Employees Must post FLSA notice in conspicuous place 18 9

10 Overtime

11 Overtime Must pay overtime for all hours worked > 40 hrs/week No limit on number of hours employees aged 16 & older may work in any workweek FLSA Overtime Rate = 1 ½ times employee s regular rate of pay 21 What is the Regular Rate of Pay? Regular rate = all remuneration for employment except certain payments excluded by FLSA Regular rate of pay cannot be less than the minimum wage 22 11

12 Hours Worked Employees must be compensated for all hours worked Included: Mid-shift breaks of 20 minutes or less (e.g., coffee or smoke breaks) On-call time where employee is engaged to wait Excluded: Uninterrupted meal times Time waiting to engage 23 Hours Worked Hours worked includes any additional time employee is allowed to work IBP, Inc. v. Alvarez (2005) U.S. Supreme Court held: time spent donning and doffing unique protective clothing is compensable under the FLSA Travel from home to work and back normally not compensable time 24 12

13 Hours Worked DOT limits max driving time for passenger-carrying vehicles Only applies to motor carriers and drivers subject to FMCSRs Hours Restrictions Max. 15 hrs on-duty following 8 consecutive hrs off duty Max. 10 hrs driving following 8 consecutive hrs off duty Restrictions on Periods of Driving 70 hour/8 day Rule If employing motor carrier operates CMVs every day 60 hour/7 day Rule If employing motor carrier does not operate CMVs every day 25 REMEMBER: Notable FLSA Exemptions Exemption White Collar Employees - Administrative Employees - Professional Employees - Executive Employees Interstate Motor Carrier Outside Sales Employees Commissioned Sales Taxi Cab What is Exempt? Minimum Wage; Overtime Overtime Minimum Wage; Overtime Overtime Overtime 26 13

14 White Collar Employee Exemptions Three types: Executive Administrative Professional **Exempt from minimum wage and overtime 27 White Collar Employee Exemptions White Collar employee classified as exempt if employee is: 1. Paid on a salary basis 2. Paid salary of not less than $455/week 3. Meets primary duties test for executive, administrative, or professional employee 28 14

15 Executive Exemption Primary duty = managing enterprise managing customarily recognized department or subdivision of enterprise Customarily/regularly directs work of 2 other full-time employees Authority to hire & fire others ** Business owners may be classified as exempt executives 29 Administrative Exemption Primary duty = performance of office or non-manual work directly related to management or general business operations 30 15

16 Professional Exemption 1. Learned Professional Employee Primary duty = performance of work requiring advanced knowledge 2. Creative Professional Employee Primary duty = performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor 31 Motor Carrier Exemption Employee is not entitled to overtime payment if: 1. Employee is employed by motor carrier or motor private carrier subject to the FMCSR AND 2.A Employee operates a CMV or 2.B Employee duties affect the operational safety of CMVs AND 3. Vehicle operated, or worked on, by employee transports property or passengers on public highways in interstate or foreign travel When will the exemption not apply? When operating a non-cmv (small vehicles - i.e., sedans) When operating only in intrastate commerce Mixed workweeks Operating both interstate and intrastate Operating both CMV and non-cmvs 32 16

17 Outside Sales Employees Exemption Primary duty = making sales or obtaining orders/contracts for services or for use of facilities where client/customer pays consideration AND Must be customarily & regularly engaged away from employer s place of business **Exempt from minimum wage and overtime 33 Commissioned Sales Exemption Employee must meet all 3 conditions: 1. Be employed by retail or service establishment 2. Regular rate of pay must exceed 1 ½ times applicable minimum wage 3. >½ total earnings in representative period must consist of commissions Tips paid to service employees by customers commissions 34 17

18 Records and Recordkeeping

19 Records and Recordkeeping Accurate records are critical to avoiding compliance problems Requirements generally applicable to employers of workers subject to FLSA s minimum wage & overtime pay requirements 37 Records and Recordkeeping FLSA requires employers to make, keep & preserve certain records Payroll records, collective bargaining agreements, sales & purchase records Retain at least 3 yrs Wage computations records Retain at least 2 yrs Need not be kept in any particular form Time clocks not required 38 19

20 14 Basic Records to be Maintained 1. Employee s full name and SSN 2. Address (including zip) 3. Birth date (<19 yrs old) 4. Sex & occupation 5. Beginning time & day of workweek 6. Hrs worked each day 7. Total hrs worked each workweek 8. Basis on which employee's wages are paid (e.g., $9/hr or $420/wk ) 9. Regular hourly pay rate 10. Total daily or weekly straight-time earnings 11. Total overtime earnings for workweek 12. All additions to, or deductions from, employee s wages 13. Total wages paid each pay period 14. Payment date & pay period covered 39 Enforcement 40 20

21 Recent DOL Enforcement May 2012 DOL sues CT limo company for back wages & liquidated damages for more than 50 employees Drivers regularly operated Lincoln Town Cars and SUVs Motor carrier exemption does not apply to small vehicles 41 Questions? Washington, DC Brussels San Francisco Shanghai 21

22 Thank you! Crystal N. Skelton Michael F. Morrone Manesh K. Rath Keller and Heckman LLP 1001 G Street NW Suite 500 West Washington, DC (202) Washington, DC Brussels San Francisco Shanghai 22

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