FLSA Fair Labor Standards Act 29 U.S.C., Sec. 201 et seq. - PowerPoint PPT Presentation

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

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Title: DISCIPLINE AND DUE PROCESS CONSIDERATIONS, CONSEQUENCES AND LIABILITY Author: chelms Last modified by: Bill Created Date: 12/2/2002 2:32:42 AM – PowerPoint PPT presentation

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


1
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

2
Table of Contents
  • The Law
  • Compliance
  • Record keeping
  • Prevention

3
Fair Labor Standards Act
  • Enacted in 1938
  • Minimum Wage/ Overtime/ Child Labor
  • US Dept of Labor
  • Purpose To prevent abuse of employees by
    employers

4
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

5
Work Week Daily Hours
  • Employer may set
  • Work Week
  • Daily Work Schedule
  • To Avoid Overtime

6
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

7
Test for Exemption
  • Two-Part Test
  • Salary gt 455 p/week / 23,660 p/year
  • Duties

8
Exempt Employees
  • Executive Employees
  • Administrative Employees
  • Learned Professional Employees
  • Creative Professional Employees
  • Computer Employees
  • Teachers

9
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

10
Non-Exempt Employees
  • Secretaries
  • Instructional Assistants
  • Custodial Workers
  • Bus Drivers
  • Maintenance Workers
  • Cafeteria Workers

11
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

12
RECORDKEEPING
  • Without GOOD records, you will not be able to
    pull enough rabbits out of the hat.

13
Record Keeping
  • Employer responsible for record keeping
  • Employee required to follow Employers record
    keeping procedures
  • Time cards / Time sheets
  • District Overtime Policy followed

14
Without GOOD records . . .
  • Employee wont be paid accurate amount!

15
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

16
Accurate Employee Files
  • Employees must update information in employees
    whenever circumstances change (address, phone
    number, marital status, dependents, etc.)

17
COMPLICATING FACTORS
  • Dual jobs
  • Occasional or sporadic work
  • Volunteers

18
DUAL JOBS
  • Bus driver instructional assistant
  • Coach instructional assistant
  • Bus driver custodian
  • Instructional assistant gate keeper
  • And the list goes on . . .

19
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

20
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

21
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

22
Break Periods
  • Meal periods involving no duties and lasting 30
    minutes or more
  • Rest periods of 20 minutes or more

23
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!

24
Permitting/suffering
  • Employer must make
  • employee
  • leave
  • or
  • pay
  • them!

25
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.

26
Recordkeeping
  • This is everyones proof for accurate pay
  • Bad example
  • Good example
  • The best record is a time clock!

27
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.

28
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

29
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

30
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

31
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

32
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

33
QUESTIONS ANSWERS
  • Q A

34
For additional information or assistance,
contact
  • Ramon Vigil, Jr.
  • The Cuddy McCarthy Law Firm
  • rvigil_at_cuddymccarthy.com
  • www.dol.gov
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