Presentation Transcript

1. FPELRA Presentation 2014 February 12, 2014 ▪ Tampa FLSA TRAPS AND TIPS: avoiding common but costly flsa mistakes Presented by: Guilène F. Theodore, Esq.
2. Upward Trend in FLSA Lawsuits Continue FLSA lawsuits continue to rise nationwide Florida continues to lead the nation in FLSA lawsuits New Wave of Collective Action litigation It is often cheaper to pay a small claim and the plaintiff’s attorney’s fee than it is to defend the claims
3. Wage & Hour Mistakes are Avoidable GOOD NEWS: Wage and Hour problems are avoidable by: drafting, and communicating clear policies, closely monitoring employee activity, promptly correcting problems once they are discovered, and staying up to date on developments in the law.
4. DOL’s Aggressive Enforcement Policies FOCUS on: Misclassification of Employees as Independent Contractors On Improper Exempt Classification Referral to Other Federal Agencies Partnership with American Bar Association: Bridge to Justice Program
5. DOL- Timesheet Application DOL’s Smartphone application that allows employees to record their own time.
6. First, Let’s Review the Basics… FIRST, Let’s Review the Basics: What the FLSA requires … And … … what it does not require
7. The Basics… Definition of “Workweek” Longer workweek period and Partial Overtime Exemption permitted for firefighters and law enforcement officers
8. The Basics… Different rules related to use of compensatory time in the public sector Furlough rules in the public sector as applied to Exempt employees
9. The Basics… Hours Of Work All time that employee is required, suffered, or permitted to work. Key is employer knowledge or acquiescence. Are the circumstances such that the employer could have “reasonably known” that the employee was “working”?
10. The Employer Is In Control And Must Enforce The Rule In all cases, it is the duty of the employer to exercise its control to see that the work is not performed if it does not want it to be performed. The mere promulgation of a rule is not enough. Management has the power to enforce the rule and must make every effort to do so. 29 C.F.R. § 785.13
11. The Basics… What are “Hours Worked”? Hours of work include all time that the employee is required, suffered, or permitted to work. Includes: Employee’s normally scheduled hours (i.e., employee’s normal shift). All “off the clock” time spent performing job-related activities that benefit the employer.
12. The Basics… Suffered” Or “Permitted” To Work Jane continues to work past the end of her shift. This time is “hours worked.” The work was not requested by anyone, but it was “suffered.” Work may also have been “permitted.” Permitted if employer expressly approved it. Employer may also permit by acquiescing (i.e., employer could have reasonably known that employee was working and did not stop employee from doing so.)
13. The Basics…Non-Covered Employees vs. Exempt Employees Distinction between Non-Covered and Exempt employees in the public sector Non-Covered Elected Officials; Legislative employees Volunteers Independent Contractors Prisoners Certain Trainees
14. Common Employer Mistakes in Wage-Hour Law Tracking Compensable Time Inaccurate Time Records Managers Improperly Refusing to Pay for Unapproved O/T Miscalculating O/T Misclassifying Employees Taking Actions that Jeopardize Exempt Status Taking Actions viewed as RETALIATORY
15. Common Compensable Time Issues Travel Time On-Call Time Rounding Clock Time Donning & Doffing Time Breaks and Meal Periods “Off the Clock” Work Training Time
16. Examples OfOff-The-Clock Work Employee sets up his/her machine/ equipment or boots up computer before clocking in. Employee clocks out and continues to work. Employee puts on protective gear before clocking in. Secretary works during lunch. Secretary stops at the post office on the way home. Paralegal checks e-mail at home. IT responds to e-mail.
17. Examples OfOff-The-Clock Work Employee takes a 15 minute lunch Employee attends a safety meeting before clocking in.
18. Preliminary And Postliminary Activities Performance of principal activities is always compensable. Preliminary and postliminary activities are noncompensable unlessthey are an integral and indispensable part of an employee’s principal activities. “Principal activities” are activities which the employee is employed to perform. Integral and indispensable activities are those which are essentialand closely relatedto the principal activity.
19. Common Compensable Time Issues: Donning & Doffing United States Supreme Court has ruled that: Time spent donning and doffing job-required clothing and safety equipment that is indispensable to job is compensable work time. Walking time to and from production floor after donning and doffing is compensable work time. Time spent waiting in line at end of shift to doff protective clothing or equipment is compensable. But, time spent waiting in line to don clothing or equipment is usually not compensable time.
20. Common Compensable Time Issues: Travel Time Is travel time to and from work compensable? No -- unless: Employee works during commute. Employee begins working before leaving home. Any traveling during normal work hours is considered work time. Same day travel to and from another company facility? Yes. Overnight travel away from home? No -- except for time that cuts across normal work hours
21. Common Compensable Time Issues: On-Call Time “Waiting to be engaged or engaged to wait.” Whether on-call time counts as work hours depends on the “degree of constraint on employee’s time.” Employee must be able to use time effectively for his or her own purposes for it not to be compensable time. Not compensable time if employee is “merely required to leave word where he or she can be reached.”
22. Common Compensable Time Issues: Rounding May round to nearest quarter hour. 5:53 -- can be round forward to 6:00 5:52 -- can round back to 5:45 Units clock: 25 units equals 15 minutes. 88 units -- round forward to 100 87 units -- round back to 75
23. Common Compensable Time Issues: Training Time Time spent attending lectures, meetings, and training programs need not be counted as hours worked, provided the following conditions are met: Meetings are held outside normal work hours. Attendance is voluntary. Course is not directly related to employee’s job. Employee does no productive work during meeting.
24. Miscalculating Overtime Overtime must be at one and one-half times the regular rate. The “regular rate” consists of “all remuneration for employment.” All remuneration for “time worked and effort expended that relates to the employee’s quantity or quality of work.” Overtime Is Paid On The “Regular Rate”
25. Usually Included In The Regular Rate Shift differential On-call pay Longevity bonus
26. On-Call Pay Is Included In Regular Rate Calculation Example: Paid $19/hr plus $50 on-call pay for 50 hrs. Total Compensation = 50 hrs x $19.00 = $950.00 + $50.00 = $1,000.00 Regular rate = $1,000 / 50 hrs = $20.00 OT premium = ½ x $20 = $10.00 $10 x 10 hours = $100.00 Total with OT = $1,100.00
27. Misclassifying Exempt Employees Executive Administrative Professional Highly Skilled Computer Highly Compensated FLSA “White Collar” Exemptions
28. Executive Duties Common mistake: Including working forepersons/supervisors/assistant managers. Primary duty must be management of the enterprise or department (or recognized subdivision); Customarily and regularly directs the work of 2 or more “other” full-time employees. Authority to hire or fire or particular weight given to such recommendations.
29. Administrative Duties Common mistake: classifying all “clerical” employees as exempt. Primary duty is the performance of office or non-manual work directly related to the management or general business operation of the employer or the employer’s customers. Exercise ofdiscretion and independent judgment as to matters of significance.
30. Learned Professional Common mistake: LPNs and IT. Examples: Lawyers, Doctors, Accountants. Primary duty must be the performance of work requiring advanced knowledge. In a field of science or learning. Customarily acquired by a prolonged course of specialized intellectual instruction.
31. Computer Professionals Common mistake: HelpDesk. Paid $455 per week if exempted as a professional employee and paid on salary basis or paid $27.63 per hour. Primary duty must be systems analysis, system design or development, testing or program design, or development or training.
32. Actions that Defeat Exempt Status Improper Deductions from Salary of Exempt Employees Reductions in Pay because of lack of work Furloughs; short-term layoff Issues; and reduced schedules.
33. Things to Remember Exemptions require complex, individualized analysis. Job titles are not dispositive. Actual job duties are the dispositive factor.
34. Best Practices Draft and Communicate Clear Policies Written Policies/ acknowledged by employees Include Complaint Provisions to correct errors Employee to approve any corrections to time Pre-approval of Overtime and Consequences of not obtaining approval (Must still be paid)
35. Best Practices Post Legal Notices of FLSA rights Train Managers Regularly (also, Payroll and Accounting, and Clerk of Court)
36. Best Practices Closely Monitor Employee Activity Regular audits and monitoring of Managers’ procedures Promptly correct problems when they arise
37. Best Practices Stay abreast of new legal developments
38. Recent Developments Cases Statutes and Guidelines Other Initiatives
39. Any Question? Any Questions?
40. THANK YOU Thank you!