Transcript Fair Labor Standards Act

Welcome
Fair Labor Standards Act
“FLSA”
in school settings
OSBA Presenters
• Van Keating, Esq.
Director of Management Services
• Renee Fambro, Esq.
Deputy Director of Labor Relations
A legal overview of the FLSA
Statutes
• Fair Labor Standards Act of 1938,
29 USC §201 et seq.
• Ohio Revised Code RC § 3319.086
defines standard work week as 40 hours
unless authorized by Board as fewer hours.
• Ohio Revised Code RC § 4111.03
requires time and a half pay or
compensatory time after regular work
week
Compensation requirements
• Time and a half must be paid or compensatory
time must be given for time worked over 40
hours per week.
• The 40 hours does not include vacation or
sick hours, but only actual hours worked
(RC § 3319.086)
• The FLSA also sets minimum wage currently $5.15/hour
FLSA forbids employees to
volunteer
• Employees must be paid for all hours
worked.
• Therefore, employees cannot volunteer
to work for the district.
Occasional/Sporadic Employment
• Occasional or sporadic employment in a
capacity different from regular duties will
not entitle the employee to overtime even if
combined time exceeds 40 hours
• The key is that the work truly must be
occasional and solely at the employee’s
option
• E.g. custodian substituting as a bus driver
Don’t forget ….
Potential impact on:
• FMLA
• Benefits
• COBRA
Key Points of the FLSA
• Overtime >40 hours in 7
days
• Rate of 1.5X of “regular
rate”
• “Regular rate” = blended
value of all the various
rates
FLSA in Ohio’s
Schools
FLSA in Schools
• Since the employees are “public employees” they
are governed by the FLSA’s provisions
• FLSA divides workers into 2 categories - Exempt
and Nonexempt - each of these have numerous
subcategories
• Exempt = professional employees - teachers,
administrators, executive employees
• Nonexempt = bus drivers, cooks, custodians,
secretaries, etc
• Exempt employees are not subject to the
requirements of the FLSA
Timekeeping Issues For
Bus Drivers
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Regular Routes
Extra Routes
Substitute Routes
Field Trips
Compensatory Time
• Under the FLSA, boards of education
must pay their non-teaching employees
“time-and-a-half” or compensatory time
• Compensatory time paid to public
employees must be used within a
reasonable time
• Maximum accrual of 240 hours of
compensatory time
29 USC §207 (o)
Other Overtime Issues
• Portal-to-Portal
• Blended rate calculations
• Other districts jobs:
– Coach
– Aide
– Akron City Case
Which provisions create the
most problems?
When a claim is made against an
employer, the only effective defense is
very complete and accurate records of
hours worked for every non-teaching
employee. According to experts,
almost all employers’ records are
insufficient to withstand a lawsuit.
A complication is the fact that the U.S.
Department of Labor issued new
regulations on April 24, 2004, which
will add some uncertainties as the
courts attempt to interpret these new
rules.
Penalties
• FLSA Employer fines
– $1,000 - $10,000
• Recovery of back wages
• Potential cost of
damages, fees and court
costs
How to avoid noncompliance
• Obey the law
• Control number of hours worked
• Keep good records (presumption in
favor of employee without records)
• Post all notices
• Educate supervisors
Collective Bargaining and the FLSA
• The 40-hour work week cannot be
bargained away.
• The school board can agree to a shorter
“standard work week.”
• There can be greater than time and a half
compensation such as work on Sunday or
certain holidays or emergency times.
FLSA cannot be superceded by
bargaining . . .
No collectively bargained or individual
employment agreement can conflict with
the OT/Compensatory time provisions of
the FLSA
Contract Language
• Pay on any basis as long as it does not fall
below minimum FLSA standards
• District “overtime” may be bargained to
mean something different than
“FLSA overtime”
TOP 8 FLSA PITFALLS IN
THE SCHOOL SETTING
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Additional duties
Two-rate systems
Estimating hours worked
Salary v. hourly
Compensatory time
“Suffering or permitting” work
Volunteer service
“On-call” time
QUESTIONS?
COMMENTS?