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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

rvigil@cuddymccarthy.com www.dol.gov