Fair Labor Standards Act Volunteers, Reductions in Pay and Other Quirky Issues

1. Fair Labor Standards ActVolunteers, Reductions in Pay and Other Quirky Issues Penney Rector Assistant to the Superintendent for Human Resources & District Counsel Jefferson City Public Schools MOASBO Conference April 2012

2. OVERTIME EXEMPT V. NON-EXEMPT EMPLOYEES Salary ($455 week) + Duties Administrative Employees • Paid on a salary basis at a rate of at least $445 per week. Salary is not subject to reduction for work performance or hours missed if less than one full day. Except, salary can be reduced for disciplinary suspensions of a full day or more; • Primary duty is office or non-manual work related to the management or general business operations of the employer or the employer’s customers (In the academic arena, the administrative duties must be directly related to academic instruction or training rather than general business operations); and • Holds a position of responsibility with the employer – exercises discretion and independent judgment about significant matters.

3. Professional Employees • Criteria for the Professional Exemption: • Paid on a salary basis at a rate of at least $455 per week. Salary is not subject to reduction for work performance or hours missed if less than one full day. Except, salary can be reduced for disciplinary suspensions of a full day or more. Except, salary can be reduced for disciplinary suspensions of a full day or more (Salary minimum does not apply to teachers and computer personnel meet the exemption if paid at least $27.63 per hour and they design, develop or analyze operating systems, develop hardware or software, etc.) • Requires advanced knowledge in the field of science or learning customarily acquired through prolonged education; or • Requires invention, imagination, originality or talent in a recognized field or artistic or creative endeavors.

4. Executive Employees • Criteria for the Executive Exemption: • Paid on a salary basis at a rate of at least $455 per week. Salary is not subject to reduction for work performance or hours missed if less than one full day. Except, salary can be reduced for disciplinary suspensions of a full day or more; • Primary duty is the management of the business or a department of the business; • Customarily and regularly directs the work of two or more full-time equivalent employees; and • Authorized to hire or fire or whose recommendations will be given particular weight.

5. Computer Employees • Includes employees who are highly skilled in computer systems analysis, programming, software engineering or similar computer functions. • Criteria for the Computer Exemption: • Paid on a salary basis at a rate of at least $455 per week. Salary is not subject to reduction for work performance or hours missed if less than one full day. Except, salary can be reduced for disciplinary suspensions of a full day or more (Salary exemption also applies if make at least $27.63 per hour); and • Primary duty is application of systems analysis techniques and procedures; design, development, etc., of computer systems or programs; design, testing, creation, etc. of computer programs related to machine operating systems; or a combination of these duties.

6. Evaluation of Exempt Status • Careful analysis of each position • Focus on duties • Do not rely on job title or salary or job description • Err on the side of non-exempt

7. Who is Exempt? • Central Office Certificated Administrators • Building Principals • Registered Nurses • Certificated Teachers

8. Who is Not Exempt? • Bookkeepers • Secretaries • Teacher’s Aides • Nurse’s Assistants • Bus Drivers • Custodians • Mechanics • Maintenance Workers • Food Service Workers

9. Other Positions(Duties are Key) • Supervisors Who are Not Certificated (food service, maintenance, business manager…..) • Administrative Assistants • Technology Employees • Multiple Duties (Titles and Responsibilities) • Joint Employment (ex. District and Bus Company employ) • Non-Certificated Coaches/Advisors/Sponsors

10. Work Time v. Overtime? Work Time Hours actually worked (suffered or permitted to work) 40 hours in a 7 day workweek • Includes: • All hours worked (even if in violation of overtime policy) • All hours on duty • Travel between work sites • Required/Compelled “volunteer” time • Excludes: • Meal breaks 30 minutes or more • Rest breaks 20 minutes or more • Travel to and from work • Break time for nursing mothers (but if use regular rest break time, cannot treat differently than other employees who are compensation for rest breaks)

11. VOLUNTEER SERVICES • Receives no promise of compensation for services (can be paid for expenses, reasonable benefits or a nominal fee); • Services are not of the same type as the services regularly employed to perform (cannot perform the same or similar work to regular work for which the employee is compensated); and • Services are offered freely, without pressure or coercion (direct or implied. **Services must be offered freely. Cannot be pressured into “volunteering”. Employer must protect against allegations of coercion/pressure by employees or former employees by having a process for accepting volunteers.

12. WHAT DO YOU THINK? • Can a full time bus driver volunteer to drive the bus for the football team? • What if the driver’s son plays for the team? • Can a full time bus driver volunteer to coach the football team? • What if the coach is required to drive the bus? • Can a food service employee operate the concession stand? • Can a food service employee provide food for a school function? • What if the food service employee is contracted to provide the food through his private catering service?

13. REDUCTIONS IN PAY GENERAL RULE (to maintain exempt status) If employee performs any work during the work week, s/he is to be paid the full salary amount. No salary is due in any work week where NO work is performed. BUT….

14. Allowable Deductions • Employee absences for one or more full days for personal reasons other than sickness or disability; • Employee absences for one or more full days due to sickness of disability if deduction is made in accordance with a policy, plan or practice of providing compensation for salary lost due to illness; • Offset jury, witness fees or for temporary military duty pay; • Penalties imposed in good faith for infractions of safety rules; • Unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions; • Initial or terminal week is not a full week; or • Unpaid FMLA leave.

15. Unauthorized Deductions • Partial day absences (except first or terminal work week or FMLA absences) (Exempt employees receive a full days pay for partial days worked); • Closure due to inclement weather; • Absences for jury duty, witness duties, temporary military duties (still paid the difference between fee and wages)*; and • Minor illness absences when no sick leave plan, policy or practice of providing wage replacement benefits. *If employee does not work at all during the work week, no obligation to pay.

16. Disciplinary Suspensions Can pay deductions be imposed for disciplinary purposes? If in good faith for safety rule violations of major significance. (related to prevention of serious danger in the workplace) (Written policy in place prior to deduction.) Are there other situations when an exempt employee can be suspended without pay? (If in good faith, for one or more full workday, and for infraction of workplace conduct rules (i.e., policies prohibiting drug use, sexual harassment, violation of state or federal laws, not attendance or performance) (Written policy in place prior to deduction.) (Does not address contractual/ due process concerns.)

17. Special Provision for Public Agency Employees Exempt employee can have pay reduce or be placed on unpaid leave due to personal reasons (vacation/personal) or sick/disability because: • Permission to use leave was not requested or was requested and denied; • Accrued leave has been exhausted; or • Employee chooses to use leave without pay. WHEN the employee is paid according to a pay system set by statute, policy, regulation or practice which allows accrual of personal leave and sick leave and which requires pay to be reduced for such absences.

18. RECORDKEEPING Non-Exemption Employee (minimum requirements) • Employee’s full name and social security number • Employee’s address, including zip code • Employee’s birth date if younger than 19 • Time and day of the week when the employee’s workweek begins. • Hours worked each day and total hours worked each workweek. • Basis on which the employee’s wages are paid (Weekly, Monthly, etc.) • Employee’s regular hourly rate of pay • Employee’s total daily or weekly straight-time earnings • Employee’s total overtime earnings for the workweek • Any additions or deductions to the employee’s wages • Employee’s total wages paid each pay period • Date of payment and pay period covered

19. What if employees work on a FIXED SCHEDULE? Must you maintain separate time sheets for each of these employees? Not necessarily. Maintain records showing the fixed schedule of daily and weekly hours employees normally work. This works so long as you take a few additional steps. • When an employee adheres to the schedule, affirmatively indicate that the employee actually worked those hours. • In weeks where the employee works less than, or more than, the fixed hours, indicate the exact number of hours worked each day and each week through the use of leave slips and compensatory time slips. • If you have a policy that sets forth the fixed schedule for employees and you note for each employee that in a given week s/he worked those hours that should suffice to meet the requirements of the Act. • If an employee takes leave on a given day and you require and maintain the employee’s leave slip which is then recorded in your employment records that, too, should suffice. • And, in those instances where an employee works overtime, you require and maintain a compensatory time slip stating the hours of overtime worked, this should suffice as well. • To ensure compliance, payroll personnel should then transcribe the hours and maintain a record from the submitted documentation. • You must be able to demonstrate that the records are accurate and reliable – that employees adhere to the fixed schedule and when they do not, accurate individual records are maintained. A general policy may work for some of your employees, and separate time records may be needed for other employees.