Fair Labor Standards Act (FLSA)

1. Fair Labor Standards Act(FLSA) Angela Moore Indiana State Library Intern July 31, 2013

2. Presenter Introduction • Rising 2nd year law student • Not a lawyer • Summer legal intern at ISL • Former librarian at Berne Public Library

3. Disclaimer • This is legal information, not legal advice • I cannot apply the law to your specific situation

4. Overview • FLSA and relevant Indiana state law • How they apply to Indiana libraries • Who is covered? • General Requirements • Minimum wage • Overtime pay • Compensatory time (aka “comp time”) • Exemptions • Youth restrictions • Miscellaneous

5. Who is Covered by FLSA?

6. Who is Covered? • Government agencies (e.g. public libraries) have “enterprise coverage” • All employees

7. Who is covered? • Employees • In general, someone who works for you • Defined in 29 USC 203(e) • Not employees: • Independent contractors • Don’t be tricky: tested by “economic reality” • Volunteers of public agencies: 29 USC 203(e)(4) • But, employees cannot volunteer to perform the same services they are employed to do • Because public agencies (e.g. political subdivisions such as public libraries) can have unpaid volunteers, they can have unpaid interns

8. Minimum Wage

9. Minimum Wage • $7.25 per hour worked • Exemptions for administrative, executive, professional, & computer-related positions • Proposed legislation

10. Hours Worked • What counts? • Time employee is “suffered” or “permitted” to work • Employer has the duty to stop extra work • Unscheduled time, work from home, etc. are paid • Breaks (including meals) are paid unless: • Relieved of duties, and • Able to use time for own purposes

11. Hours Worked • Training • Paid if one of the following: • During regular working hours • Mandatory • Job-related, or • Employee performs productive work for employer • Employee-initiated educational courses are not hours worked

12. Proposed Legislation “Fair Minimum Wage Act of 2013” • Identical bills: HR 1010 and S 460 • Referred to committee • Would raise minimum wage to $8.20 after 90 days • Would create system for yearly changes to minimum wage, 95¢ increases for first 2 years • Will it pass? Image from Microsoft Office Online Clip Art

13. Overtime

14. Overtime • Employees 18 or older can work any number of hours per day/week • Overtime pay kicks in for hours worked over 40 per week • Not calculated per day • Employer sets day workweek begins • Overtime rate can be no lower than time & ½ • Applies to hourly & salaried employees • Exemptions for administrative, executive, professional, & computer-related positions

15. Compensatory Time • Section 7(o) of FLSA: 29 USC 207(o) • Give additional paid time off instead of overtime pay • Public agencies (e.g. public libraries) • Pursuant to an agreement • You are not required to give comp time instead of overtime pay • No more than 240 accumulated hours • Receive 1.5 hours comp time per overtime hour

16. Compensatory Time • Example: • Employee works 50 hours in one work week • 10 hours overtime • 2 ways to compensate employee: • Pay for 55 hours (40 hours plus 10 hours × 1.5), or • Pay for 40 hours, employee receives 15 hours comp time

17. Exemptions

18. Exemptions • “To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week. Job titles do not determine exempt status.” • Job must be one of the following: • Administrative • Executive • Professional • Computer-related (exception to salaried rule) http://www.dol.gov/whd/regs/compliance/fairpay/fs17a_overview.htm

19. Administrative Exemption • Salaried • At least $455 per week • Primary duty: • Office work, or • Non-manual work directly related to management or general business operations • Exercises discretion and independent judgment in matters of significance http://www.dol.gov/whd/regs/compliance/fairpay/fs17c_administrative.htm

20. Executive Exemption • Salaried • At least $455 per week • Primary duty • Managing the whole or a recognized department or subdivision • Regular direction of at least 2 full-time employees (or their equivalent) • Authority to hire/fire, or recommendations given particular weight http://www.dol.gov/whd/regs/compliance/fairpay/fs17b_executive.htm

21. Professional Exemption • Salaried • At least $455 per week • Primary duty • Perform work requiring advanced knowledge & predominantly intellectual in character • Job requires advanced knowledge • Field of science or learning • Customarily acquired through intellectual instruction (e.g. by getting a degree) http://www.dol.gov/whd/regs/compliance/fairpay/fs17d_professional.htm

22. Computer-Related Exemption • Requirements • Wage • Salaried at $455 per week or more, OR • Hourly at $27.63 or more • Skilled worker in the computer field • e.g. systems analyst, programmer, software engineer • Not included: • Computer hardware repair/manufacture • Employees whose work is facilitated by computers http://www.dol.gov/whd/regs/compliance/fairpay/fs17e_computer.htm

23. Exemptions Recap • Administrative • Executive • Professional • Computer-related • Wage + nature of job • Exempt from overtime pay

24. Youth Restrictions

25. Youth Restrictions • Under 14 • Very narrow allowances (e.g. child actors) • Ages 14-15 • FLSA • Age 16 & Age 17 • Indiana law • 18 and above • Not considered youth • U.S. Dept. of Labor’s Child Labor Bulletin 101 http://www.dol.gov/whd/regs/compliance/childlabor101.pdf • Indiana Child Labor FAQs: www.in.gov/dol/2398.htm

26. Youth Restrictions • Ages 14-15 • Cannot work: • During school hours, before 7am, or after 7pm (or 9pm from June 1 – Labor Day) • Over 3 hours on school days/8 hours on non-school days • Over 18 hours in school weeks/40 hours for non-school • No hazardous jobs • Operating machinery, using ladders, etc. • School hours, days, weeks of worker’s local public school system, even if private-, home-schooled http://www.dol.gov/whd/regs/compliance/childlabor101_text.htm

27. Youth Restrictions - Homeschoolers • Federal law says no working during “school hours” as set by local public school system, Indiana law says can work during “traditional school hours” with proper permission. • Consult your lawyer

28. Youth Restrictions • Age 16 – Indiana law • May work: • 8 hours per day • 30 hours per week • Until 10:00 p.m. on nights followed by a school day • With parental permission may work: • 9 hours per day, • Until 12:00 a.m. on nights NOT followed by a school day, • 40 hours per school week, • And/or 48 hours per non-school week. • With written school permission may work: • After 7:30am and before 3:30pm • May not work: • More than 6 days per employer's work week • Before 6:00 am • In hazardous jobs www.in.gov/dol/2398.htm

29. Youth Restrictions • Age 17 – Indiana Law • May work: • 8 hours per school day • 30 hours per week • Until 10:00 p.m. on nights followed by a school day • With written parental permission, may work: • 9 hours per day • 40 hours per school week • 48 hours per non-school week • until 11:30 p.m. on nights followed by a school day • or until 1:00 a.m. on nights followed by a school day, but not on consecutive nights and not more than two school nights per week • With written school permission may work: • After 7:30am and before 3:30pm • May not work • More than 6 days per employer's work week • Before 6:00 a.m. on school days • In hazardous jobs www.in.gov/dol/2398.htm

30. Youth Restrictions • Breaks • Shift of 6 or more hours • One or two breaks totaling 30 minutes or more • Can be unpaid • Document all breaks • Withdrawn/high school graduates • If over 16, not bound to the hour restrictions/break requirements http://www.dol.gov/whd/regs/compliance/childlabor101_text.htm; www.in.gov/dol/2398.htm

31. Youth Restrictions • Youth Minimum Wage • $4.25 for first 90 calendar days of employment • $7.25 after first 90 days/18th birthday • Cannot displace workers to hire new youths at $4.25

32. Youth Restrictions • Work permits • Indiana state law • For minors 14-17 • Required during the summer, too • Can only obtain once hired • Obtained through local accredited school (even if home-schooled)

33. Youth Restrictions • Exceptions to work during school hours: • Work-Study and Career Exploration • Governed by Code of Federal Regulations • 29 CFR 570.36 and 29 CFR 570.37 • Must be school-administered and school-supervised

34. Miscellaneous

35. Recordkeeping • Records for each non-exempt worker, no particular form • Keep for at least two years, some things three years: • Employee's full name and social security number. • Address, including zip code. • Birth date, if younger than 19. • Sex and occupation. • Time and day of week when employee's workweek begins. • Hours worked each day. • Total hours worked each workweek. • Basis on which employee's wages are paid (hourly/weekly/etc.) • Regular hourly pay rate. • Total daily or weekly straight-time earnings. • Total overtime earnings for the workweek. • All additions to or deductions from the employee's wages. • Total wages paid each pay period. • Date of payment and the pay period covered by the payment. • Don’t forget about Indiana Commission on Public Records http://www.dol.gov/whd/regs/compliance/whdfs21.pdf; http://www.in.gov/icpr/index.htm

36. Nursing Mother Employees • Amendments to FLSA through Affordable Care Act: 29 USC 207 (r) • Reasonable break time each time mother (non-exempt employee) needs to express milk • For one year after child’s birth • A place (cannot be a bathroom) • Shielded from view • Free from intrusion by coworkers or public • Exemption if <50 employees and undue hardship • State law: IC 5-10-6-2 • (For state/political subdivisions) Breaks must be paid, but should coincide with other breaks http://www.dol.gov/whd/regs/compliance/whdfs73.htm; http://www.in.gov/legislative/ic/code/title5/ar10/ch6.html

37. Mandatory FLSA Posting • “Every employer of employees subject to the Fair Labor Standards Act's minimum wage provisions must post, and keep posted, a notice explaining the Act in a conspicuous place in all of their establishments so as to permit employees to readily read it.” • Available at: http://www.dol.gov/whd/regs/compliance/posters/flsa.htm

38. Resources • US Department of Labor • http://www.dol.gov/whd/flsa/ • http://www.dol.gov/compliance/laws/comp-flsa.htm • Hotline: 1-866-4USWAGE (1-866-487-9243) • FLSA for gov’t employers • http://www.dol.gov/whd/regs/compliance/whdfs7.pdf • Indiana Department of Labor • http://www.in.gov/dol/ • FAQs: http://www.in.gov/dol/2345.htm • Child Labor FAQs: www.in.gov/dol/2398.htm

39. Questions For questions about how the FLSA applies to your library, contact your library’s attorney.