The number of wage and hour laws affecting employers is staggering, and with the Department of Labor stepping up its investigation and enforcement efforts, staying in compliance is critical to avoiding liability, including financial penalties and possible litigation.
As the definition of “work” has evolved over the years, gone are the days when calculating wages was a relatively simple task. These days, the DOL’s Wage and Hour Division is paying closer scrutiny to all aspects of an employee’s work life – whether your employees are punching a time clock during a 40-hour week, working overtime, telecommuting, being “on call”, donning and doffing special work equipment, traveling as part of their job, or a number of other scenarios.
During this one-hour webinar, labor and employment attorneys Charlie Plumb and Paul Ross help employers gain a more thorough understanding of the DOL WHD’s role and authority, their new enforcement initiatives, and what employers can do to stay in compliance and out of trouble.
Topics covered include:
- The DOL’s new enforcement initiatives
- What to expect during a wage and hour investigation
- Collective action litigation brought by employees
- Who and what the DOL is targeting in 2012
- Individuals classified as independent contractors
- Joint employer status
- Tasks in preparation of work (including donning and doffing)
- Travel time
- On-call status
Watch this webinar | Originally broadcast February 14, 2012
» Download webinar presentation materials
The following are answers to questions asked during the webinar. Please note that these answers are being provided for information of clients and friends of McAfee & Taft and do not provide legal advice and are not intended to create a lawyer-client relationship. In addition, we are not able to provide answers to fact-specific inquiries. Readers should not act upon the information provided below without seeking professional counsel.
Q: How do we pay employees who are “full-time” salaried, but who work sporadically due to weather and customer conditions?
A: If a full-time, salaried employee is exempt, his salary remains unchanged regardless of the sporadic nature of his work. If the full-time, salaried employee is non-exempt, consider converting him to an hourly rate of compensation and pay him only for hours actually worked.
Q: What is the law pertaining to providing working breaks to hourly associates?
A: While rest periods and lunch breaks are helpful for morale and productivity, there is no legal requirement for working breaks. There are two exceptions: if you are unionized and your contract requires breaks, or if your current policy manual assures employees of scheduled breaks.
Q: If the DOL interviews non-management employees after hours, does the employer have to pay the employee for the interview time period?
A: Assuming that the interviews are scheduled and coordinated by the DOL and not the employer, and the employee’s participation in the interviews is voluntary, it is unlikely that this time could be considered “hours worked” under the act. However, more input and involvement by the employer in the process can lend support to the contrary argument.
Q: Can part-time employees be classified as exempt?
A: Yes — if their actual duties fall within one of the FLSA exemptions and they receive the statutory salary amount, rather than being paid by the hour.
Q: How do you calculate overtime regarding travel time and for employees who are in training?
A: The calculation of overtime does not typically change when travel time and/or training time is included in a work week. Non-exempt employees are entitled to one and one-half times their regular rate of pay for all “hours worked” over 40 in a work week. Training time and travel time may be “hours worked” and may contribute to an employee’s total “hours worked” for a week, depending upon the application of the various travel and training time regulations.
Q: Can you have a worker who is a W-2 employee and also an independent contractor if you are in compliance with all FLSA laws regarding independent contractors for the type of work they are performing? (This pertains to a worker who is doing two different types of work for the company.)
A: It is very difficult for an employer to take the position that an individual performs some tasks as an employee and other tasks as an independent contractor. Some factual circumstances make that possible, but it is rare.
Q: If an employer changes an employee’s worksite – such as to complete a specific project – is the time the employee spends to commute to that new worksite compensable?
A: It depends. If this is a “special one-day assignment,” the specific travel time rules of those assignments would apply. If this is a longer assignment, and the employee commutes a reasonable distance from his/her home to the temporary assignment on a daily basis, and if you do not require the employee to perform any work during that travel, it would be considered ordinary commute and not compensible work time.
Q: Suppose an exempt employee chooses to attend a seminar over the weekend, even though the employer does not require him to do so. Is the employer required to compensate him for the time spent at the seminar (for example, with comp time)?
A: Employees properly classified as exempt employees are paid on a salary basis regardless of actual hours worked. Since your question assumes an exempt employee, no additional compensation would be required outside of any policies or agreements you may have that would require it.
Q: Does the continuation rule support compensation of commuting time following a call to report to work?
A: On-call employees who are required to report to work at their regular workplace in response to a call to return to work are engaging in an ordinary commute. Therefore, if the employer does not require or permit any work to occur during that commute, the commute time is not “hours worked.”
Q: If an employee is salaried, is there a limited amount of on-call commuting or work that is acceptable before it becomes an issue?
A: If an employee is exempt, he or she may be paid on a salary basis regardless of the number of hours worked in the workweek (including hours that may need to be counted as “hours worked” for travel or on-call time.
Q: We live in a remote area, so all of our training requires travel out of town. We have always paid the driver overtime if he is traveling after hours or anytime outside the regular 8am-5pm workday. What about the passenger? If they are required to travel on Sunday or after hours, should they be paid overtime if they are just riding?
A: If your employee is a passenger on travel assignments involving an overnight stay, and some part of his or her travel occurs outside of regular working hours, the travel time outside of your employee’s regular hours is probably not hours worked. However, if your employee is driving, or otherwise working while traveling, that time may be compensable (and may or may not be “overtime” if the employee works in excess of 40 hours that workweek).
Q: Would you recommend that employers use a time clock instead of handwritten time sheets?
A: The keys to any time recording system are accuracy and making sure the records are maintained contemporaneously. For those reasons, many employers find electronic timekeeping systems superior. Such systems limit human error and can be particularly advantageous when an employer has multiple worksites.
Q: What do I do differently for employees that occasionally work out of state? Are there any rules about that?
A: The answer depends upon whether the employee is exempt or non-exempt, whether he is paid hourly or on a salary basis, and whether overnight travel is involved. There are definitely rules that apply to these situations, and a specific inquiry of the circumstances involved is necessary.
Q: Do completed I-9 files have to be kept separate from the personnel files?
A: We recommend that our clients maintain binders containing its Form I-9s separate from other personnel documents.
Q: What are the wage and hour requirements for “comp” or “flex” time?
A: If an employee is non-exempt, they must receive overtime pay for any hours worked during a workweek which exceed 40. The only way comp or flex time affects an employer’s overtime obligation is if the employee uses the comp or flex time during the same workweek they worked extra hours. In that case, using comp or flex time during the same workweek they worked extra hours may cause them to work less than 40 hours and avoid overtime.
Q: Can you change an employee’s work schedule if you need him to work a weekend instead of a weekday?
A: You may change a non-exempt employees assigned hours to require them to work on a weekend, rather than a weekday. The payment of overtime does not depend on what days of the week a non-exempt employee works. Overtime is triggered any time a non-exempt employee works in excess of 40 hours during a workweek — regardless of which days they work or don’t work.