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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 - PowerPoint PPT Presentation
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FLSA Fair Labor Standards Act29 U.S.C., Sec. 201 et seq.
Presented by Ramon Vigil Cuddy & McCarthy Law FirmNMASBO Fall ConferenceSeptember 12, 2012
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Table of Contents
The Law
ComplianceRecord keepingPrevention:
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Fair Labor Standards Act
Enacted in 1938 Minimum Wage/ Overtime/ Child Labor US Dept of Labor Purpose: To prevent abuse of employees
by employers
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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
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Work Week & Daily Hours
Employer may set Work Week Daily Work Schedule To Avoid Overtime
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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
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Test for Exemption
Two-Part TestSalary > $455 p/week / $23,660 p/yearDuties
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Exempt Employees
Executive Employees Administrative Employees Learned Professional Employees Creative Professional Employees Computer Employees Teachers
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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
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Non-Exempt Employees
Secretaries Instructional Assistants Custodial Workers Bus Drivers Maintenance Workers Cafeteria Workers
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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
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RECORDKEEPING
Without GOOD records, you will not be able to pull enough rabbits out of the hat.
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Record Keeping
Employer responsible for record keeping Employee required to follow Employer’s
record keeping procedures Time cards / Time sheets District Overtime Policy followed
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Without GOOD records . . .
Employee won’t be paid accurate
amount!
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Good records for ALL employees:
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
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Accurate Employee Files
Employees must update information in employees whenever circumstances change (address, phone number, marital status, dependents, etc.)
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COMPLICATING FACTORS
Dual jobs
Occasional or sporadic work
Volunteers
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DUAL JOBS
Bus driver – instructional assistant
Coach – instructional assistant
Bus driver – custodian
Instructional assistant – gate keeper
And the list goes on . . .
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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
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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
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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
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Break Periods
Meal periods involving no duties and lasting 30 minutes or more
Rest periods of 20 minutes or more
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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!
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Permitting/suffering
Employer must make
employee
leave
or
pay
them!
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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.
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Recordkeeping
This is everyone’s proof for accurate pay
Bad example
Good example
The best record is a time clock!
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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.
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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
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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
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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
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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
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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)/601 ½ ($520)/601 ½ ($8.67) = $13.01
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QUESTIONS & ANSWERS
Q & A
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For additional information or assistance, contact:
Ramon Vigil, Jr.The Cuddy & McCarthy Law Firm
[email protected] www.dol.gov