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

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FLSA Fair Labor Standards Act29 U.S.C., Sec.
201 et seq.

• Presented by Ramon Vigil
• Cuddy McCarthy Law Firm
• NMASBO Fall Conference
• September 12, 2012

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Table of Contents

• The Law
• Compliance
• Record keeping
• Prevention

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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 Test
• Salary gt 455 p/week / 23,660 p/year
• Duties

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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 Employers record
  keeping procedures
• Time cards / Time sheets
• District Overtime Policy followed

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Without GOOD records . . .

• Employee wont 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 Districts
  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 doesnt 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 everyones 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
• DONT 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 employees 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 40320) (12 x 336)356

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Computing Comp Time

• OT1 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)/60
• 1 ½ (520)/60
• 1 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
• rvigil_at_cuddymccarthy.com
• www.dol.gov