Fair Labor Standards Act: Practical Procedures and Potential Pitfalls

1. Fair Labor Standards Act: Practical Procedures and Potential Pitfalls Kristin VanOrman, Strong & Hanni P.C.

2. Basic FLSA Public Agency Requirements • Minimum Wage: All employees must be paid the Federal minimum wage of $7.25/hour, for all hours worked; • Overtime: Generally, unless otherwise exempt, every employee must be paid one and one-half times their regular rate of pay for all hours worked over 40 in the workweek; • Youth: Employers must comply with youth employment standards; and • Record Keeping: Employers must comply with certain recordkeeping requirements. Weber County Supervisor Training 3/7/2019

3. Hours Worked: Normally includes all time spent actively working, or when an employee is required to be on the employer’s premises, on duty, or at a prescribed work place. • On Call: Generally, where the employee is required to be on the employer’s premises is work time, but unless significant restrictions are imposed, time on call away from work, at home, or where the employee can be reached if needed, is not considered work time. • Meal and break periods are not compensable where the employee is completely relieved of their duties. However, if the supervisor knows an employee is working during a break, that time should be compensated, as the employee is not completely relieved of duties. • Similarly, is has been determined that breaks less than 20 minutes are not long enough to completely relieve an employee of their duties, and so are compensable as well. Hours worked Weber County Supervisor Training 3/7/2019

4. Employers are generally required to maintain records  containing certain identification, payroll, and hours worked information for all employees who are not exempt from the minimum wage and overtime standards. • Where an employer has not kept records of hours worked, courts have allowed the employee’s testimony of the hours worked to be admitted in order to determine unpaid wages, overtimes, and liquidated damages. Record Keeping Weber County Supervisor Training 3/7/2019

5. If you know that an employee worked time which was not reported, even if you did not authorize it, a supervisor may be disciplined, and the employer may be liable under the FLSA for failing to pay employees for time worked; • If you know a time record is inaccurate, contact the employee to fix or address the issue. If you cannot contact the employee in time, make a note in the payroll system or in an email to the employee and follow up about the issue later. Supervisor Responsibilities Weber County Supervisor Training 3/7/2019

6. Compensatory Time for Public Agencies • Under certain conditions, employees of public agencies may receive “comp” time in lieu of overtime pay, accrued at the rate of one and one-half hours for every hour worked over 40 in a workweek. • Under the FLSA, Law enforcement, fire protection, emergency response personnel, and those engaged in seasonal activities are limited to accruing 480 hours of comp time, and may establish different pay periods and hours required before comp time is owed. • Per Weber County policy, Law Enforcement and Corrections employees must work over 86 hours in a pay period to accrue comp time, and are limited to accruing 240 hours of comp time unless otherwise authorized. • Other state and local government employees may accrue up to 240 hours. • Once an employee has reached their comp time limit, they must be compensated at the rate of one and one-half their regular hourly rate for all hours worked over 40 in a workweek. • An employee must be permitted to use compensatory time on the date requested unless doing so would “unduly disrupt” the operations of the agency. Weber County Supervisor Training 3/7/2019

7. Exempt Employees • Exempt Employees are those for whom the minimum wage and/or overtime pay protections of the FLSA do not apply. • Exemptions are specific to groups of employees. While there are multiple potential exemptions, the most common include : • Executive • Administrative • Professional Weber County Supervisor Training 3/7/2019

8. Executive Exemption To qualify for the Executive Exemption, all of the following tests must be met: • The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $455 per week; • The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise; • The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and • The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight. Weber County Supervisor Training 3/7/2019

9. Administrative Exemption To qualify for the Administrative Exemption, all of the following tests must be met: • The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week; • The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and • The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. Weber County Supervisor Training 3/7/2019

10. Professional Exemption To qualify for the Professional Exemption, all of the following tests must be met: • The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week; • The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment; • The advanced knowledge must be in a field of science or learning; and • Fields of science or learning include law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy and other occupations that have a recognized professional status • The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. Weber County Supervisor Training 3/7/2019

11. Potential Pitfalls when classifying employees • For exempt positions, the primary duties of the employee must coincide with the duties defined under an exemption, specifically, “Primary duty” means the principal, main, major or most important duty that the employee performs. • Customarily and regularly, when referring to how often an employee directs the work of two-or-more other full-time employees, means more than occasionally, even if it is not constant. Such direction should normally occur every workweek, and isolated or one-time tasks are insufficient to meet the requirements of the exemption. • An assessment of whether an exemption applies is not based on a title or job description. Employers should conduct a case-by-case assessment of the employee’s job duties to determine if the employee in fact falls under an exemption outlined by the FLSA. Weber County Supervisor Training 3/7/2019

12. Issues stemming from violations of the FLSA Failure to adhere to the requirements of the FLSA can have severe repercussions. • Failure to pay wages correctly, failure to pay overtime, or misclassifying an employee as exempt can result in an investigation by the U.S. Department of Labor, as well as a civil suit in Federal Court. If an employer is found liable, potential damages include payment of lost wages and overtime, liquidated damages in the amount of unpaid wages, and payment of the employees attorney’s fees and costs. • The FLSA also contains a provision prohibiting retaliation, and an employer may be liable for taking disciplinary or retaliatory action against an employee who complains about their wages, overtime compensation, or other violations the FLSA. • In addition to the damages listed above, a Court could order an employer to reinstate or promote and employee who has been discriminated or retaliated against. Weber County Supervisor Training 3/7/2019

13. Questions? Weber County Supervisor Training 3/7/2019