3/25/2015 Shortchanging Your Employees? Common FLSA pitfalls employers make and how to avoid them Daniel N. Ramirez Partner Labor & Employment Agenda • Introduction • Common Minimum Wage & Overtime Pitfalls • Classifying Employees • U.S. Department of Labor • Employer Under Siege: Collective Actions Lawsuits • Planning for the Future • Best Practices for Wage & Hour Compliance 1 3/25/2015 Introduction U.S. DOL—Wage & Hour Division • In 2014, the DOL Wage & Hour division recovered $240 million in back wages in the course of almost 22,557 cases covering 270,000 workers • Since 2009, the Wage & Hour Division has recovered $1.3 billion of back wages covering 1.5 million workers • In 2014, over 922 wage and hour lawsuits were filed in Texas 2 3/25/2015 FLSA Lawsuits Here We Come! http://www.wagehourinsights.com/FLSA%20Charter.JPG Ads Targeted at Employees“Get the overtime pay you deserve!” 3 3/25/2015 Common Minimum Wage & Overtime Mistakes Pitfall #1 • Misclassifying employees as exempt from overtime: – Employee agreed to receive salary – Salary, non-exempt employees – Nobody works over 40 hours – Office/Clerical jobs are salaried – Employee is exempt because their work is “important” 4 3/25/2015 Pitfall #2 • Not Paying Overtime to Non-Exempt Employees: https://www.youtube.com/v/GjJCd CXFslY – Compensating employees straight time instead of OT rate – Giving comp time off instead of paying OT – Hours reduced based on performance issues – Using schedules instead of accurate clock in/out records • Off-the-Clock Work Pitfall #3 – De Minimus work—no bright line rule – When an employee is required to give up a substantial measure of his time and effort that compensable working time is involved – Employees required to clock out at 5:30 p.m., but continue working off the clock – Employee trying to “catch-up” on work, but not paid – Employee working from home, but not paid – Pre- and Post-job requirements 5 3/25/2015 Pitfall #4 • Waiting Time – Counted as hours worked when • Employee is unable to use the time effectively for his or her own purposes; and • Time is controlled by the employer – Not counted as hours worked when • Employee is completely relieved from duty; and • Time is long enough to enable the employee to use it effectively for his or her own purposes – On-call time Pitfall #5 • Rest and Meal Breaks: – Rest Period less than 20 minutes must be compensated – Meal Break less than 30 minutes must be compensated – These periods must not be interrupted – Care should be taken to ensure such a period is entirely uninterrupted from work 6 3/25/2015 Pitfall #6 • Misclassifying Employees as Independent Contractors: – Employers improperly classify employees as independent contractors – Among other factors, if an employer has control or the right to control the worker, the worker may be misclassified as an independent contractor Pitfall #7 • Incomplete & Inaccurate wage and hour records: – An employer’s records must be thorough and complete. If it is your word against the employee, you will lose every time – Must be accurate – Conduct frequent audits 7 3/25/2015 Pitfall #8 Unpaid Interns • • • • • Internship for college credit? Using interns instead of regular employees? Do interns benefits from the experience of this internship? What type of training or guidance is provided? Day-to-day tasks expected of an intern? Fair Labor Standards Act (FLSA) • The FLSA establishes: • • • • Minimum wage Overtime pay Recordkeeping Youth employment standards for full-time and parttime employees 8 3/25/2015 FLSA Does Not Require • Vacation, holiday, severance, or sick pay • Meal or rest periods, holidays off, or vacations • Premium pay for weekend or holiday work • A discharge notice, reason for discharge, or immediate payment of final wages to terminated employees • Any limit on the number of hours in a day or days in a week an employee at least 16 years old may be required or scheduled to work • Pay raises or fringe benefits The Hourly Worker: Non-Exempt Employee Minimum Wage—Up to 40 Hours $7.25 per hour Over 40 hours = $7.25 (or other pay rate) x 1.5 = overtime compensation Proper Hourly Compensation Hourly + Overtime Compensation Remember to Pay during Workweek i.e., Monday through Sunday, 8am to 5pm 9 3/25/2015 Types of Wages • Wages (salary, hourly, piece rate) • Commissions • Certain bonuses • Tips received by eligible tipped employees (up to $5.12 per hour) • Reasonable cost of room, board and other “facilities” provided by the employer for the employee’s benefit Discretionary Bonus • Discretionary bonuses are not included in regular rate – the "fact" of payment and "amount" of payment "are determined at the sole discretion of the employer at or near the end of the period …” • Non-discretionary bonuses ARE included in regular rate • How to keep a bonus discretionary: – Employer must retain • Discretion as to $$$ • Discretion as to timing of payment – Cannot pay bonus pursuant to any prior contract, agreement or promise 10 3/25/2015 Example of Non-Discretionary • The types of incentive and production bonuses which must be taken into consideration when figuring overtime pay “because of a contract, agreement, or promise” are those based on: – Production by individual or groups or employees; – Attendance; – Accuracy of work; – Quality of work; – Length of service; – Efficiency; – Courtesy; and – Number of overtime hours worked. • Hourly Employee’s Production Bonus – Total Hours = 48 – Hourly Rate = $9.00 – Bonus = $10 48 hours x $9.00= Bonus $442.00 / 48 hrs $9.21 x .5 $4.61 x 8 hrs = = = $432.00 + $ 10.00 $442.00 $9.21 (Regular Rate) $4.61 $36.88 (Overtime Due) Paying 2 Different Hourly Rates • An employee in a single workweek performs two or more different types of at different hourly rates (on call, shift pay differential, etc.) – Regular rate is the weighted average of both rates – ((Rate 1 × Hours Worked) + (Rate 2 × Hours Worked)) ÷ Total Hours Worked = Regular Rate 11 3/25/2015 Paying 2 Different Hourly Rates • Jason works on Machine A for 21 hours at a rate of $4.50 per hour and on Machine B for 26 hours at a rate of $5 per hour. Jason's total compensation will be figured as follows: – – – – – – – – – – – 21 hours × $4.50 = $94.50 26 hours × $5 = $130.00 47 $224.50 regular pay Regular rate = regular pay ÷ hours worked Regular rate = $224.50 ÷ 47 hours Regular rate = $4.78 per hour Overtime pay = overtime hours × overtime rate Overtime pay = 7 hours × ($4.78 × ½) Overtime pay = 7 hours × $2.39 Overtime pay = $16.73 Gross wages = regular pay + overtime pay Gross wages = $224.50 + $16.73 Gross wages = $241.23 Fluctuating Work Week • An employee is on a salary for fluctuating hours if: – Paid an agreed flat sum each week (excluding OT pay); – Agreed that the flat sum amount excluding OT pay is for all hours worked each workweek; – Provided a bona fide sick plan; – No deductions for part days; and – Deducted whole day or greater absences if no accrued sick pay or personal leave • Recommendation: – Draft a written memorandum or agreement signed by employee confirming he understands how he will be paid 12 3/25/2015 Fluctuating Work Week • Weekly salary = $500 – Week 1 = 40 hours • Regular rate = salary ÷ hours 500 ÷ 40 = $12.50 (regular rate) • Total pay received = $500 – Week 2 = 60 hours • Regular rate = salary ÷ hours • Overtime pay = regular rate × ½ × overtime hours $500 ÷ 60 = $8.33 (regular rate) $8.33 × ½ × 20 = $83.30 (overtime pay) • Total pay received = $583.30 ($500 salary + $83.30 overtime pay) – Week 3 = 30 hours • Regular rate = salary ÷ hours 500 ÷ 20 = $25 (regular rate) • Total pay received = $500 Day Rates • What is a day rate? • A flat sum for a day’s work, without regard to the number of hours worked • Under the FLSA, a day rate simply affects how an employer must calculate an employee’s regular hourly rate of pay for a work week 13 3/25/2015 Day Rates – As with any non-exempt employee, the regular rate cannot fall below minimum wage – If an employee paid a day rate works more than 40 hours in a given week, the employer must pay time-and-a-half on top of the regular rate for any hours worked over 40 Deductions Requirements for Taking Deductions from Paychecks: • Signed worker consent; • Employer may deduct the reasonable cost of meals, lodging, and other facilities furnished to worker in connection with the employment, provided, among other things, that the employer does not profit thereby and only if these items are customarily provided to employees in the industry; and • Deductions must not put worker below minimum wage. 14 3/25/2015 The Salaried Worker Exempt From Overtime • The most common exemption—often called the “white collar” exemption—applies to certain – – – – – – – Executive Employees Administrative Employees Professional Employees Creative Employee Highly Compensated Employee Outside Sales Employees Computer Professionals 15 3/25/2015 Exempt: Executive Employees • Duties of Executive Employees – Primary duty is management of the enterprise or of a customarily recognized department or subdivision; – Customarily and regularly directs the work of two or more other employees; and – Authority to hire or fire other employees or recommendations as to the hiring, firing, advancement, promotion or other change of status of other employees given particular weight. Exempt: Administrative Employees • Job Duties: – Primary duty must be performance of office or nonmanual work directly related to the management or general business operations of the employer or the employer’s customers; and – Exercise of discretion and independent judgment with respect to matters of significance. 16 3/25/2015 Common General Exempt Employees • Executive Employees – Plant Manager – Regional Manager – Store Manager – Office Manager • Administrative Employees – Human Resources – In-House Accounting – Public Relations Exempt: Learned Professionals Job Duties: • Employee’s primary duty must be the performance of work requiring advanced knowledge, (intellectual in character and consistent exercise of discretion and judgment); • Field of science or learning; and • Advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction (generally a degree). 17 3/25/2015 Exempt: Creative Professional • Employee’s primary job duties: – Must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor – Exemption as a creative professional depends on the extent of the invention, imagination, originality or talent exercised by the employee – Employees in such fields as, for example, music, writing, acting and the graphic arts Exempt: Highly Compensated Professional • Perform office or non-manual work and paid total annual compensation of $100,000 or more (which must include at least $455 per week paid on a salary or fee basis); and • They customarily and regularly perform at least one of the duties of an exempt executive, administrative or professional employee identified in the standard tests for exemption 18 3/25/2015 Exempt: Outside Sales Employees • Job Duties of Outside Sales Employees – Making sales or obtaining orders or contracts for services or facilities for consideration paid by customer – Customarily and regularly engaged away from the employer’s place(s) of business in performing such primary duty – No compensation test Exempt: Computer Professionals • Job Duties of Computer Professionals – The application of systems analysis techniques and procedures; – The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs; – The design, documentation, testing, creation, or modification of computer programs related to machine operating systems; and – A combination of the above requiring the same level of skills. 19 3/25/2015 Permissible Deductions? • Permissible Deductions-Exempt Employees – Personal days of one day or more – Sick days of 1 day or more, if pursuant to bona fide time off plan – Setoffs for jury, witness or military duty – Suspensions for violating “safety rules of major significance” – Suspensions of one day or more for violating written workplace conduct rules – Prorations for initial or terminal weeks of employment – Time missed due to FMLA leave Consequences of Misclassification • Errors result in employer paying more than is owed to employee such as: – Pay amount of unpaid overtime for past 2 to 3 years (depending on statute of limitation) – Liquidated damages equal to the amount of unpaid overtime – Attorneys fees for employee’s attorneys – Fines, interest, and possible criminal sanctions – DOL Investigation 20 3/25/2015 U.S. Department of Labor Wage & Hour Law • Enforcement of Federal Labor Standards Act (FLSA) • Objectives of U.S. Secretary Thomas E. Perez: – Increased budget to focus on dealing with wage and hour complaints – Hiring of more investigators – Coordinated investigations and regulatory actions with federal and state enforcement agencies • FY 2014, DOL collected $240 million in back wage. 21 3/25/2015 DOL Investigations • Department of Labor (“DOL”) Investigations Begin – Employee Complaint – Competitor Complaint – Follow-up Audit • DOL Authority – – – – – Audit Wage and Hour Records Interview Employees (~ non-management) Calculate Back Wages Owed Liquidated Damages Civil Monetary Penalties Employers Under Siege: FLSA Collective Actions Lawsuits 22 3/25/2015 FLSA Collective Actions • What is a FLSA Collective Action Lawsuit? – Lawsuit alleging wage and hour violations. – Worker’s (and plaintiff’s attorney) dream come true: • Similarly situated workers are invited to join • Workers at same location and different employer locations in Texas and throughout U.S. FLSA Collective Actions • How does it effect the employer? – Former AND current workers for past 3 years; – Court-approved written notice – Pay back wages – Liquidated damages = Back wages – Attorneys’ fees = Generally 40% of damages 23 3/25/2015 The Cost of Wage & Hour Collective Actions? • Brinker Restaurant Corp. – $56.5 million for 108,000 workers • City of Los Angeles – $26 million for 1,074 workers • Walgreen Co. – $23 million for 40,000 workers • Wells Fargo – $15 million for 4,500 workers • Wal-Mart – $21 million for 1,800 workers • Kindred Healthcare – $16.5 million for collective action • J.P. Morgan Chase – $16 million for collective action • Verizon California – $15 million for 6,800 workers FLSA Collective Actions • Employee A is owed $5,000 for OT error. There are 20 other employees who are in the same positions as Employee A. • Lawsuit filed: – Court will generally permit written notice to be sent to these 20 employees to join lawsuit – If all 20 employees join, this claim is now $100,000 – The liquidated damages = $100,000 – Total damages $200,000 + Attorney’s Fees ~ $80,000 (approx. 40%) • Total Liability = $280,000 24 3/25/2015 FLSA Collective Actions • Employer Solution—Arbitration Agreements Arbitration Agreements in Texas • What is an Arbitration Agreement? – Workers can still sue – Employers choose “location”… private room not a courtroom – Generally resolved quicker – Experienced Decision Maker – Make it a condition of employment executed by employee • FLSA Collective Actions & Arbitration Agreements – Arbitration Agreement for Employers in the 5th Circuit • Worker can waives the right to receive notice of FLSA collective action • Worker can waive the right to participate in FLSA collective action 25 3/25/2015 Employer Defense Strategies • In case of wage and hour lawsuit: – Retrieve all wage and hour records – Analyze work weeks at issue – Analyze employee by employee to assess risk/liability – Isolate and eliminate wage and hour practices that pose risk – Prevent retaliation claims – Apply any credits Creating a Culture of Wage & Hour Compliance BEST PRACTICES 26 3/25/2015 Best Practices • Audit and enforce company policies regarding wage & hour practices and issue any disciplinary action • Conduct routine internal and external audits of pay practices • Ensure exemption job positions have job descriptions. Best Practices • Create a culture of compliance with wage & hour policies, law, procedures • Hold managers and supervisors accountable • Accurate clock-in/out system • Obtain signed, notarized affidavit if employer enters into agreement with employee who complains of wage and hour issues (for use in future as credit) 27 3/25/2015 Daniel N. Ramirez, Partner Labor and Employment Law Employment | Labor | Immigration www.montyramirezlaw.com | [email protected] Disclaimer ABOUT US. Established in 1998, Monty Ramirez, LLP is the largest Hispanic-owned labor, employment and immigration law firm in the Southwest. The Firm is passionate about representing the interests of companies with large Hispanic workforces. The firm offers a range of corporate legal services to Fortune 500, publicly-traded companies, major industry associations and governmental agencies (notably serving as Immigration Counsel for the agencies). The Firm represents employers in investigations and audits conducted by the National Labor Relations Board, Department of Labor, Bureau of Citizenship and Immigration Service, Occupational Safety and Health Administration and Equal Employment Opportunity Commission. DISCLAIMER. This presentation is for informational purposes only and provides general information concerning employment and immigration law to help you identify when you may need additional advice. It is not an exhaustive treatment of the statutes, case law or regulations that are involved with the subject. Please recognize that the law is developing rapidly in this area and you will want to obtain current legal advice on your specific situation before taking action. Employment and Immigration law liabilities are often highly dependent on the particular facts and circumstances of the individual case or situation. As such, employers should seek the advice of counsel prior to making their determinations. Monty Ramirez, LLP is available to answer any employment or immigration related issue(s) with Your Company. 28 3/25/2015 Copyright Materials • This presentation is protected by United States and International copyright laws. Reproduction, distribution, display and use of the presentation without permission of the Monty Ramirez, LLP is prohibited. 29
© Copyright 2024