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FLSA Fair Labor Standards Act 29 U.S.C., Sec. 201 et seq .

FLSA Fair Labor Standards Act 29 U.S.C., Sec. 201 et seq. Presented by Ramon Vigil Cuddy & McCarthy Law Firm NMASBO Fall Conference September 12, 2012. Table of Contents. The Law Compliance Record keeping Prevention: . Fair Labor Standards Act. Enacted in 1938

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FLSA Fair Labor Standards Act 29 U.S.C., Sec. 201 et seq .

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  1. FLSAFair Labor Standards Act29 U.S.C., Sec. 201 et seq. Presented by Ramon Vigil Cuddy & McCarthy Law Firm NMASBO Fall Conference September 12, 2012

  2. Table of Contents • The Law • Compliance • Record keeping • Prevention:

  3. Fair Labor Standards Act • Enacted in 1938 • Minimum Wage/ Overtime/ Child Labor • US Dept of Labor • Purpose: To prevent abuse of employees by employers

  4. OVERTIME • More than 40 hours in a work week (7 consecutive 24-hour periods) • 1 ½ times hourly rate • May give compensatory time off • Hours worked – all time employee on duty

  5. Work Week & Daily Hours • Employer may set • Work Week • Daily Work Schedule • To Avoid Overtime

  6. The Law: • Exempt Employees • Executives • Administrators • Professionals • Non-Exempt Employees • Custodial workers • Bus drivers • Cafeteria workers • Secretaries • Instructional assistants PAYMENT BY SALARY DOES NOT DETERMINE EXEMPT OR NON-EXEMPT STATUS

  7. Test for Exemption • Two-Part Test • Salary > $455 p/week / $23,660 p/year • Duties

  8. Exempt Employees • Executive Employees • Administrative Employees • Learned Professional Employees • Creative Professional Employees • Computer Employees • Teachers

  9. Examples of Exempt Employees • Dept. Supervisors of support staff employees (Food Service Manager, Transportation Supervisor, Office Manager, Custodian and Maintenance Supervisor) • Supt., Asst. Supt., Principals, Asst. Prin., Directors, Coordinators • Teachers

  10. Non-Exempt Employees • Secretaries • Instructional Assistants • Custodial Workers • Bus Drivers • Maintenance Workers • Cafeteria Workers

  11. Compensatory Time29 C.F.R., Sec. 553 • 1 ½ hours comp time for each hour of OT worker • Memorialize agreement before the work is performed • Up to 160 OT hours, i.e., 240 comp time hours • Reasonable opportunity to take comp time

  12. RECORDKEEPING Without GOOD records, you will not be able to pull enough rabbits out of the hat.

  13. Record Keeping • Employer responsible for record keeping • Employee required to follow Employer’s record keeping procedures • Time cards / Time sheets • District Overtime Policy followed

  14. Without GOOD records . . . Employee won’t be paid accurate amount!

  15. Exempt employees: Name Home address Date of birth (if under 19) Gender Occupation Time of day and day of week that workweek begins Basis on which wages are paid Non-exempt employees: All of the data for exempt employees, plus Regular hourly rate for any workweek when OT is worked Basis on which wages are paid Amount and nature of compensation that is excluded from regular rate Hours worked each workday Good records for ALL employees:

  16. Accurate Employee Files • Employees must update information in employees whenever circumstances change (address, phone number, marital status, dependents, etc.)

  17. COMPLICATING FACTORS • Dual jobs • Occasional or sporadic work • Volunteers

  18. DUAL JOBS • Bus driver – instructional assistant • Coach – instructional assistant • Bus driver – custodian • Instructional assistant – gate keeper • And the list goes on . . .

  19. Occasional or Sporadic Work • Must not be performance of work similar to work regularly performed • Cannot be a condition of employment • Regular part-time jobs do not qualify • Examples: • Cafeteria worker stays late to assist with an evening banquet • Secretary takes up tickets at a ballgame

  20. Occasional or Sporadic Work • If it becomes routine it is no longer occasional or sporadic work. Employer should find a way to pay OT or rotate the assignment • For example: • Taking tickets for the basketball season as opposed to taking tickets for the one championship game hosted by your District

  21. Volunteers • Must be different work from work regularly performed (Parent Volunteer Exception) • May not be coerced or condition of employment (Free-Will; Charitable) • No expectation of compensation • Should qualify under and comply with District’s Volunteer Policy

  22. Break Periods • Meal periods involving no duties and lasting 30 minutes or more • Rest periods of 20 minutes or more

  23. Out of Town Travel • Non-working hours are generally not compensable • Must not require performance of duties or other work • If required to be available, employee must be paid! • If there is no where to go, and all they can do is sit there, employee must be paid!

  24. Permitting/suffering Employer must make employee leave or pay them!

  25. Permitting/suffering • If the employer “suffers or permits” an employee to work overtime, even after telling employee they cannot, then the employer is responsible for payment. • It doesn’t matter if the work is performed at home or at school. • Mere promulgation of the rule is not sufficient to avoid overtime liability.

  26. Recordkeeping • This is everyone’s proof for accurate pay • Bad example • Good example • The best record is a time clock!

  27. Report Pay Errors Immediately • Review Pay Check for Errors in Pay • Report Error to Immediate Supervisor • Submit Information About Error in Writing for Correction ASAP • DON’T WAIT !!!!! • The Sooner Errors are Caught, the Sooner they Can Be FIXED.

  28. Strategies For Employer to minimize overtime pay: • Employer May Adjust schedules • Minimize dual employment • Use exempt employees as much as possible • Make certain “extra duties” do not lead to overtime • Develop, implement and enforce overtime time policies

  29. PREVENTION • Properly classify employees as exempt and non-exempt • The employer and the employee may not agree to waive the employee’s rights to overtime • Staff must realize that compliance is not optional and that failure to comply places the District at risk • Perform a FLSA audit

  30. Computing Overtime • OT = 1 ½ Times Hourly Rate over 40 hrs • $8.00 p/hr 7 hr/day 35 hr work week • Works 3 extra hours during week • $8 x 38 = $304 • Works 8 extra hours during week • ($8 x 40=$320) + ($12 x 3=$36)=$356

  31. Computing Comp Time • OT=1 ½ hrs for each hr worked over 40 hr • $8.00 p/hr 7 hr day 35 hr week • Works 5 hrs extra during week (40 hrs) 5 hrs of comp time • Works 10 hours extra during week (45 hrs) (5 hrs) + (5 x 1 ½ = 7½) = 12 ½ hr comp time

  32. Computing Blended OT Rate • Job 1 = $10 p/hr & Job 2 = $ 6 /hr • Job 1 worked 40 hrs in work week • Job 2 worked 20 hours in work week • OT rate = 1 ½ (($10 x 40) + ($6 x 20))/60 • 1 ½ ($400 + $120)/60 • 1 ½ ($520)/60 • 1 ½ ($8.67) = $13.01

  33. QUESTIONS & ANSWERS Q & A

  34. For additional information or assistance, contact: Ramon Vigil, Jr. The Cuddy & McCarthy Law Firm rvigil@cuddymccarthy.com www.dol.gov

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