Fair Labor Standards Act
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Transcript Fair Labor Standards Act
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
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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
> $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 Time
29 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:
Non-exempt employees:
Name
All of the data for exempt
employees, plus
Home address
Regular hourly rate for any
Date of birth (if under 19)
workweek when OT is worked
Gender
Basis on which wages are
Occupation
paid
Time of day and day of week
Amount and nature of
that workweek begins
compensation that is excluded
Basis on which wages are
from regular rate
paid
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 nonexempt
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)/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
[email protected]
www.dol.gov
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