an overview of the fmla and the flsa for school districts david t. zafiratos ottosen britz kelly...

AN OVERVIEW OF THE FMLA AND THE FLSA FOR SCHOOL DISTRICTS

David T. Zafiratos

Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

29 U.S.C. § 201, et seq.

The Fair Labor Standards Act

The Fair Labor Standards Act

• Generally: The Fair Labor Standards Act (“FLSA”) is the most general federal labor law.

• Provisions: The FLSA contains provisions governing minimum wage, overtime pay, record keeping, and child labor.

• Hallmarks: Federal Minimum Wage: $7.25/hour Overtime: Employees receive 1.5 times their

wage for every hour worked past forty hours in a week.

FLSA Preemption

The FLSA is a regulatory floor, not a ceiling. The states can enact stricter protections than those provided by the FLSA. See Barefield v. Village of Winnetka, 81 F.3d 704, 711 (7th Cir. 1996).

For Example: The Illinois Minimum Wage Law (820 ILCS 105/)

Minimum Wage: $8.25

Overtime: Employees receive 1.5 times their wage for

every hour worked past forty hours in a week. Other Provisions:

Payroll Recordkeeping Requirements Notice Requirements Enforcement and Penalties Civil Actions

Exempt v. Non-Exempt Employees

Non-Exempt Employees: Those who are subject to the FLSA’s overtime provisions.

Exempt Employees: Those who are not subject to the FLSA’s overtime provisions.

Exempt Employees: Three Requirements

(1) Must be paid at least $455 per week ($910 biweekly / $1,971.66 monthly / $23,660 annually);

(2) Must be paid on a salary basis; Defined as a predetermined amount

constituting all or part of an employee’s compensation, which is not subject to reduction because of variations in the quality or quantity of work performed.

(3) Must perform exempt duties.

“Exempt Duties”

Key Question: What does the person do? Not: What is the person’s title?

Three Categories of Exempt Duties: Executive Professional Administrative

Executive Duties

Primary Duty: To manage the enterprise, department, or subdivision.

“Management” Includes: Interviewing, selecting, training, and disciplining employees; Setting and adjusting pay and work hours; Directing the work of employees; Appraising employees’ productivity and efficiency for the

purpose of recommending promotions or other changes in status;

Handling employee complaints/grievances; Disciplining employees; Planning the work; Planning and controlling the budget; and Monitoring or implementing legal compliance measures.

Executive Duties (cont’d)

Employees with bona fide executive duties: Must regularly direct the work of at least two

full-time employees. Must have genuine input into employment

decisions of other employees. Must customarily and regularly exercise

discretionary power. Must not devote more than 20% of one’s

work hours to activities not directly related to the performance of “management.”

Professional Duties

Primary Duty: Perform work that requires advanced knowledge. Typically requires specialized education (usually

beyond college). Requires work that is predominantly intellectual in

character (more academic than skilled trades). Requires the consistent exercise of discretion and

judgment. Important Note:

Professional employees must not devote more than 20% of one’s hours of work to activities not directly related to the performance of this specialized work

Administrative Duties

Two Requirements: (1) Perform office or non-manual work directly related

to the management or general business operations of the employer.

(2) Must include exercise of discretion and independent judgment with respect to matters of significance; employees have authority to make independent choice, free from immediate direction or supervision.

Important Note: Administrative employees must not devote more than

20% of one’s hours of work to activities not directly related to the performance of this specialized work

Administrative Duties (cont’d) Employees Performing

Administrative Duties Include: Those who regularly assist an

executive/administrator; Those who perform under generally

supervision in a field requiring specialized training, experience, or knowledge; and

Those who perform specialized assignments under general supervision.

Most Teachers Are Exempt Employees

Most teachers are exempt employees, thanks to an explicit statutory exception (29 U.S.C. § 213(a)(1)). Teachers that are always exempt employees:

General Ed Teachers Special Ed Teachers Substitutes whose primary duty is teaching Extracurricular ‘Teachers’: Athletic Coaches, Club

Sponsors Preschool teachers are sometimes, but not

always, exempt

Exempt Employees: Salary Requirements

General Rules: Exempt employees must receive their full

salary for a week in which they perform any work—regardless of the number of days or hours actually worked;

No pay is required for an entire workweek where the employee performs no work; and

No deductions can be made if the employee is ready, willing, and able to work, but the employer has no work for the employee to perform

Exempt Employees: Salary Requirements (cont’d)

Effect of Absences: Exempt employees must receive their full salary for a week in which they perform any work, unless they are absent for one or more days due to: Personal reasons (other than sickness or

accident), or Sickness or disability and reduction in pay is

due to a bona fide plan, policy, or practice that provides compensation for loss of salary (e.g., disability policy or workers’ compensation).


Other Exceptions: Exempt employees must receive their full salary for a week in which they perform any work, unless they are absent: Due to penalty for violating major safety rules; Due to intermittent FMLA leave.

First and Last Weeks: Proportionate parts of an employee’s full salary can be paid for time actually worked in the first and last weeks of employment


Prohibited Deductions: Employers cannot reduce an exempt

employees salary for absence due to: Jury duty; Testifying as a witness; or Temporary military leave.

However, if an employee is compensated for these activities, employers may offset the employee’s salary by the amount received.


Effect of Disciplinary Suspension: Employees must receive their salary for a week in which they perform any work, unless they are absent due to a disciplinary suspension of one or more full days imposed pursuant to a written policy applicable to all employees for violating workplace conduct rules. Conservative Approach: Do not allow

suspensions to occur for less than one work week at a time for any exempt employee except teachers. As always, check your Board policy and consult with your attorney!

Non-Exempt Employees

Non-Exempt Employees are subject to the FLSA’s (and Illinois’) minimum wage and overtime provisions Federal minimum wage: $7.25 State minimum wage: $8.25 Overtime: 1.5 times the employee’s wage

for every hour worked past forty hours in a workweek.

“Work Week” Defined

Formal Definition: A fixed and regularly occurring 168 hour period in seven consecutive days. May begin on any day, at any hour May be different for different employees or

employee groups

Meal Breaks

Generally: Teachers who work more than four hours per day must receive a duty-free lunch equal to the regular local school lunch period and not less than thirty minutes. (105 ILCS 5/24-9)

Effect of the One Day Rest in Seven Act (820 ILCS 140/3): Requires employees working 7.5 continuous hours to take a meal break at least twenty minutes long. This lunch break must begin before the fifth hour of their shift. Does not apply to employees whose meal period is

governed by a collective bargaining agreement.

Rest Breaks

Illinois does not have a law regarding rest breaks other than meal breaks.

The FLSA does not require employers to provide rest breaks.

If an employer does choose to grant rest breaks, then they must be paid.

Meal & Rest Breaks: Frequently Asked Questions

Can a non-exempt employee skip their two breaks in an eight hour period and leave thirty minutes early? Yes. However, because break time is paid

working time, employees should only be paid 7.5 hours.


Can a non-exempt employee skip their meal break and leave thirty minutes early? No. Meal time is mandatory if the

employee is working the requisite number of hours. Therefore, meals cannot be skipped.


Can a non-exempt employee volunteer their time and not get paid? Only if their services are offered freely,

without coercion by the employer, and Only if the volunteer work is not the same

type of service that the individual provides in their employment.

Recordkeeping: Non-Exempt Employees

Personal information (name, employee number, home address, gender, occupation, etc.);

The day of week and time when the workweek begins;

Regular pay rate; Amount excluded from the

regular pay rate; Hours worked each workday; Total hours worked each

workweek;

Total daily, regular pay; Total pay for overtime

hours; Total deductions from (or

additions to) base wages each pay period;

Date of payment, as well as the pay period covered and total wages paid each period;

Retroactive payments required by the Wage and Hour Division.

• Employers must keep the following information for non-exempt employees to comply with the FLSA (29 CFR § 516.2):

Record Keeping: Exempt Employees

Employers must keep the following information for exempt employees (29 CFR § 516.3): Personal information (name, employee

number, home address, gender, occupation, etc.)

The day of week and time when the workweek begins;

Regular hourly rate of pay or basis of pay; Date of payment, as well as the pay period

covered and total wages paid each period.

Record Keeping: Retention Requirements

Employers must retain the following records for at least three years (29 CFR § 516.5): Payroll Records; Collective bargaining agreements; Individual employment contracts; Written memoranda summarizing the terms

of payment; and Notices.

Record Keeping: Recommendations Require each non-exempt employee to use a

time sheet, time clock, or other time tracking method. Time sheets should feature a statement that the

employee acknowledges they reviewed the time sheet and it accurately reflects all time worked during that workweek.

Each employee should be required to submit a weekly time sheet within a reasonable period of time.

Each employee should keep a copy of their weekly time sheet.

FLSA Violations

Noncompliance can be costly! Federal Claim: Damages may include actual

unpaid wages, as well as liquidated damages—an additional amount equal to the actual unpaid wage.

State Claim: Employees may also bring a state claim and recover identical and additional damages as in federal claims.

Attorney’s Fees: Successful plaintiffs may be awarded reasonable attorney’s fees as well.

29 U.S.C. 2601, et seq.

The Family Medical Leave Act

The Family Medical Leave Act Generally: Under FMLA, eligible

employees are entitled to take unpaid, job-protected leave with continuation of group health insurance for up to twelve workweeks in a twelve-month period.

When Can An Employee Take FMLA Leave?

Employees can take FMLA leave: For birth and care of a newborn child; For the placement and care of a child for adoption or

foster care; To care for an immediate family member (spouses,

children, parents—but not in-laws) with a serious health condition;

To take medical leave when the employee is unable to work because of a serious health condition;

For other qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the Armed Forces.

FMLA: Covered Employers

The FMLA applies to: All public agencies; Elementary schools; Secondary schools; and Private employers that employ fifty or more

employees for at least twenty workweeks in the current or preceding calendar year.

Special Provisions for Members of the Military

Family/Military Member Deployment: Eligible employees may take FMLA leave for specified reasons related to certain military deployments of their family members.

Additional FMLA Leave: Certain employees may also take up to twenty-six weeks of FMLA in a single twelve-month period to care for a covered member of the armed services or veterans with a serious injury or illness.

FMLA-Eligible Employees

Only eligible employees can take FMLA leave. Employees are eligible when they:

Work for a covered employer; Have worked 1,250 hours during the last twelve-

months prior to the start of leave; Does not include vacation, sick time, or paid time off.

Work at a location where the employer has fifty or more employees with seventy-five miles; and

Have worked for the employer for twelve months before their leave begins. These twelve months need not be consecutive

Common Serious Health Conditions

Conditions requiring an overnight stay in a hospital or other medical care facility;

Conditions that incapacitate an employee or their family members for more than three consecutive days and have ongoing medical treatment;

Chronic conditions that cause occasional periods of incapacity for employees or their family members; and

Pregnancy (including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest).

Certification of Serious Health Conditions

Certification: Employers can require certification of a serious health condition by a health care provider. Employers must allow the employee at least

fifteen calendar days to obtain such a certification.

Second Opinions: Employers can require second or third medical opinions at their own expense if they have reason to doubt the validity of the first medical certification.

Certification of Serious Health Conditions (cont’d)

Deadline for Certification Requests: If leave is foreseeable, employers have five

business days after the notice for FMLA leave has been given to request certification.

If leave is unforeseeable, employers have five business days after the leave begins to request certification.

Effect of Paid Vacation Time and Sick Days

FMLA only requires unpaid leave. Employers may require employees to

use accrued paid vacation days or paid sick time for some or all of the FMLA leave period. Additionally, employees may elect to use

this time on their own volition.

Intermittent FMLA Leave

Intermittent Leave: Employees can take FMLA leave intermittently, or in separate blocks of time for a single qualifying reason, if it is medically necessary.

Reduced Leave Schedules: Employees can attain a “reduced leave schedule,” which reduces the employee’s usual work requirement.

Caveat: Employees must make a reasonable effort to schedule treatment such that it does not unduly disrupt the employer’s operation

FMLA Leave: Newborn Children Mothers and fathers have the right to take FMLA

leave to bond with a newborn child. Mothers can take FMLA leave for prenatal care, incapacity

due to pregnancy, and for serious health conditions following the birth of a child.

Fathers can use FMLA leave to care for his spouse who is incapacitated due to pregnancy or child birth.

New parents can also take intermittent FMLA leave, so long as the employer approves and the leave concludes within twelve months after the child’s birth. This also applies to newly placed adopted or foster

children

How Do Employees Take FMLA Leave?

Advanced Notice for Foreseeable Leave: Employees seeking to use FMLA leave are required to provide thirty days advance notice of the need to take FMLA leave, so long as the need for FMLA leave is foreseeable and it is practicable to give notice.

Unforeseeable Leave: If leave is unforeseeable, the employee must provide notice as soon as practicable. Usually the same or next business day.

How Do Employees Take FMLA Leave (cont’d)

Effect of Leave Notice Policies: Employees must also comply with an

employer’s routine leave notice policies when taking FMLA leave.

Employees are also required to follow routine call-in procedures.

How Do Employees Take FMLA Leave? (cont’d)

Response by Employer: Employers must notify an employee of whether they are eligible for FMLA leave within five days of a request. If an employer decides an employee is not

eligible, it must state at least one reason why the employee is ineligible.

FMLA Notice Requirements

Posted Notice: Every covered employer must, in a conspicuous place, post a notice explaining the FMLA’s provisions and providing information for reporting violations. Employers must also include a general

notice in employee handbooks or distribute a copy of the notice to each new employee

FMLA Notice Requirements (cont’d)

Notification of Eligibility: If an employer learns an employee has requested FMLA leave or that the employee plans to take leave for a qualifying purpose, then the employer must notify the employee of their eligibility to take FMLA leave. Employers must notify the employee of

their rights and responsibilities under FMLA

Special Provisions for School Employees

There are several special exceptions for employees of schools that govern: Intermittent or reduced leave, and Leave taken near the end of an academic

term.

School Employees: Intermittent or Reduced Leave

If a leave period ends with the school year and begins with the next year, it is considered consecutive and not intermittent—the summer vacation time does not count. Special provision, only apples to

“instructional” employees Defined as those whose principal function is

to teach and instruct students in class

School Employees: Intermittent or Reduced Leave (cont’d)

• If a leave period ends with the school year and begins with the next year, it is considered consecutive and not intermittent—the summer vacation time does not count.

School Employees: Intermittent or Reduced Leave (cont’d)

If foreseeable leave to care for a family member with a serious health condition receiving planned treatment causes an instructional employee to miss more than 20% of the total number of working days over the leave period, the employer may require the employee to either: Take leave for a period of a particular duration (not

greater than the time of planned treatment); or Temporarily transfer the employee to an alternative,

equally-compensated position during the leave.

School Employees: Leave Taken Near the End of an Academic Term

If an instructional employee’s leave begins more than five weeks before the end of a term, the employer may require the employee to stay on leave through the end of the term if: Leave will last at least three weeks; and The employee would return to work during

the three-week period before the end of the term.

School Employees: Leave Taken Near the End of an Academic Term (cont’d)

If an employee begins leave during the five-week period before the end of a term because of: Birth, placement for adoption, or placement for foster

care of a child; A need to care for a spouse, son, daughter, or parent

with a serious health condition; or A need to care for a covered servicemember.

Then the employer may require the employee to stay on leave through the end of the term, provided that:

The leave will last more than two weeks; and The employee would return to work during the two-week

period before the end of the term.


If an employee begins leave during the three-week period before the end of a term because of: Birth, placement for adoption, or placement for

foster care of a child; A need to care for a spouse, son, daughter, or

parent with a serious health condition; or A need to care for a covered servicemember.

Then the employer may require the employee to stay on leave through the end of the term if the leave will last more than five working days.


Note: When an employee is required to extend leave through the end of the term, only the amount of time up until the employee is ready and able to return to work will count against the employee’s FMLA leave entitlement.

Contact Information

David T. ZafiratosOttosen Britz Kelly Cooper Gilbert &

DiNolfo, Ltd.9990 West 190th Street, Suite A

Mokena, Illinois 60448(708) 478-4600

[email protected]

an overview of the fmla and the flsa for school districts david t. zafiratos ottosen britz kelly...

Documents