Fair Labor Standard Act (FLSA) & Framingham Public Schools A - - PowerPoint PPT Presentation

Fair Labor Standard Act (“FLSA”) & Framingham Public Schools

A Presentation by the Office of Human Resources

What is the purpose of FLSA?

• Restrict child labor
• Establish a minimum

wage

• Establish a 40-hour

work-week

• Require overtime pay
• f "time and a half" if

>40 hours per week*

• Recordkeeping*

FLSA: Statutory Definitions

• “Employ” = “to suffer or permit to work”
• “Workday” = period between time on any particular day when employee

commences his/her “principal activity” and time on that day when s/he ceases this “principal activity”

• "Work period" = "work week" → 7 consecutive days
• "Overtime" = "time actually worked beyond a prescribed threshold"
• “Overtime threshold” = 40 hours per work-week

FLSA Terms

Exempt Employees

• Who at FPS? Directors; Units A and B;

some non-bargaining

• Salary Level: at least $47,476/year

○ Currently: $455/week ($23,660/yr) ○ 12/1/2016: $913/week

• Guaranteed salary basis
• Job Duties Test (to determine exemption)

○ Executive ○ Administrative ○ Learned Professional ⇒ exempt from all requirements (i.e

minimum wage, overtime, recordkeeping) Non-Exempt Employees

• Paid hourly (don’t get paid if don’t work)
• >40 hours → overtime
• Failure to record time worked → employee

can file claim w/ DOL

• Who at FPS? Units C, N, S and T; some

non-bargaining

Non-Exempt Employees & Overtime

• "Time worked outside of normal schedule" may not be the same as "time

worked over 40 hours in a work-week."

○ Only the latter is "overtime" under FLSA ○ FLSA governs only pay due for "FLSA overtime" worked ○ Employers may use “overtime” and not mean “FLSA overtime”

Actual Time Worked & Overtime

• FLSA overtime pay for nonexempt employees is computed based on all

the time the employee has actually worked in a work-week.

Actual Time Worked & Overtime

Actual time worked = Employee's regular "on the clock" work time

+

"Off the clock" time spent performing job-related activities*

*benefit the employer

Actual Time Worked & Overtime

• Regular shift time =

○ "Breaks" (if there are breaks) ○ Nursing breaks are included! ○

“Non-productive" time (i.e. time spent by receptionist reading while

waiting for the phone to ring)

Actual Time Worked & Overtime

• Work-related activities that the employer “suffers or permits “is work time,

whether on premises or not and whether "required" or not.

○ "Unauthorized" or "unapproved" work = work ⇒ Must be counted!

• Provided employer knows or should know it is being done and permits the employee to

do it

• Privilege and responsibility of employer to "control the work" of its employees
• If employer does not wish employee to perform work → prohibit the employee from

doing so if it does not wish to include that work time in the required FLSA pay computations

• But if an employee worked w/o permission → still must get paid!

Actual Time Worked & Overtime

• Not required to be be counted in computing overtime pay:

○ Holidays ○

Vacation time

○

Sick leave

○

Funeral leave

Comp Time VS Overtime

• State/local governments permitted to give employees compensatory time:

>1.5 hours for each hour of overtime worked

○ ONLY pursuant to ■ A collective bargaining agreement*, or ■ An agreement between employer and employee before performance of work

• Maximum comp time = 240 hours → after 240 hours: overtime for any

additional overtime hours of work

• Employee may use accrued comp time w/in reasonable period after

requested if won’t unduly disrupt operations of public agency

• Upon termination of employment, employer must pay off comp time.

Volunteers

• An individual cannot be an

"employee" and a "volunteer" for the same position.

• An employer may not accept the

benefit(s) of work performed by its nonexempt employees without counting the time in computing pay due under the FLSA.

Volunteers

Example: Employee subject to the FLSA (i.e. school secretary) cannot work 40 hours/week + "volunteer" additional 10 hours/week in same job → Must be paid: 1) Regular wage for 1st 40 hours worked/week, AND 2) Time and a half remaining 10 hours worked during same week* *if work was in same position

Volunteers

• FLSA does not apply to "volunteer" workers.
• A "volunteer" does not receive any type of compensation (in the form of

money or otherwise) for his or her work.

○ An individual who receives or expects to receive any type of compensation is not a "volunteer" under FLSA. ■ I.e. free lunch, free tuition, etc.

FLSA Exemptions

A quick reminder...

Exempt Employees: A Warning

To determine which employees are exempt from the FLSA:

• FLSA exemptions are subject to strict construction and are narrowly

construed against employer, who has burden of proving exemption.

• Courts focus on actual activities to determine exempt status

○ Do not rely on resumes and job descriptions ○ Testimony concerning day-to-day job activities

Executive Exemption

• >$913/week; &
• Regularly performs all of the following:

○ Supervises >2 ○ Management is primary duty* ○ Genuine input into other employees’ job status (hiring, firing, assignments, etc.)

• Who at FPS? Superintendent, Assistant Superintendent, Directors

*Primary duty = 50% of time

Administrative Exemption

• >$913/week; &
• Primary duty: office or non-manual work that

○ Is directly related to management or general business operation of the employer or employer’s customers ○ Involves the exercise of independent judgement and discretion over matters of significance ■ Examples: spend $, pay bills, select vendors, negotiate contracts ■ Beyond simple clerical work

• Who at FPS? Principals, assistant principals, coordinators, and supervisors

○ Hardest category to determine!

Administrative Exemption

• Select administrative office roles may qualify for administrative exemption

○ Administrative Assistants over insurance and benefits, curriculum ○ Administrative Assistant to the Superintendent

⇒ exempt depending on their duties

• NOT typical secretarial/ clerical work
• In education, this exemption most often leads

to incorrect classification

• f district employees and potentially law suits.

Professional Exemptions

• >$913/week; &
• Primary duty must be work requiring

○ Knowledge of an advanced type ■ Customarily acquired by long course of specialized study; ■ Work is predominantly intellectual in character; and ■ Consistent exercise of discretion; OR ○ Invention, imagination or talent in a recognized field or artistic endeavor; OR ○ Teaching in a school system/educational institution; OR ○ Highly specialized computer knowledge* ■ Primary duty: designing systems, hardware or software

Learned Professional (A Subset of Professional Exemption)

• >$913/week; &
• Primary duty must be performance of work requiring advanced knowledge

○ Work that is ■ Predominantly intellectual in character & ■ Includes work requiring the consistent exercise of discretion and judgment ○ Advanced knowledge must be ■ In a field of science or learning; & ■ Customarily acquired by a prolonged course of specialized intellectual instruction

• Who at FPS? Teachers, Guidance Counselors, Literacy/Math Coaches
• Caveat: If time spent in work week on activities not essentially a part of and

necessarily incidental to teaching duties >20% of time worked in work week → NOT exempt → overtime

Exempt Employees

• If employee primarily performs non-exempt work → overtime & minimum

wage requirements may apply

○ i.e. if the director of maintenance spends most of his/her time doing hands-on maintenance→ most likely non-exempt

• Exempt employees are not covered by FLSA minimum wage and overtime

provisions BUT are covered by equal pay provisions

• Substitute teachers are exempt under FLSA.
• FLSA provisions do not apply to the following:

○ Independent contractors ○ Bona fide volunteers ○ Trainees, such as student teachers

Appear As Exempt BUT Are NON-EXEMPT

• Computer personnel who do not

○ Perform work requiring highly specialized knowledge in systems analysis, programming, or software engineering; ○ Work as a systems analyst, computer programmer, software engineer or similarly skilled worker; and ○ Consistently exercise discretion and judgment

• Social workers

○ Whose college degree is not in social work and ○ Do not perform work that is ■ Predominantly intellectual in character and ■ Requires the consistent exercise of discretion and judgment

How will the 12/1/2016 FLSA Changes Affect FPS?

Quite a bit...

Reclassification of Employees

• Many employees do NOT fit any
• f the exemptions so …

○ Need to be reclassified as non-exempt ■ ⇒ eligible for

• vertime!

OR ○ Raise salaries

Reclassification of Employees

Recordkeeping and FLSA

• Record-keeping requirement applies only

to "non-exempt" employees

○ Does not apply to administrators or teachers ○ BUT many employees will be reclassified to be non-exempt.

• Vigilant about tracking employee hours!
• Certain information must be retained by

the school for all "non-exempt" employees

Recordkeeping: What should be recorded?

• Day and hour when the workweek begins
• Total hours worked each workday and each workweek
• Total daily or weekly earnings
• Total overtime hours worked in a given workweek
• Hourly pay rate for any week when overtime is worked
• Total overtime pay for a given workweek
• Total wages paid each pay period
• Date of payment and pay period covered
• Deductions from or additions to wages

Potential FLSA Issues for FPS

• Comp days
• Potential incorrect classification of

employees

○

Administrative Assistant to the Asst. Supt.

○ Technology Data Specialists ○

Information System Specialist

○ Network Technicians ○

Data Research Specialist

○

System Analyst

○

School Level Tech Specialist

○

Tech Support

○

Theater Coordinator

○

HR Administrative Assistant

• Attendance Policy
• Translation Services by hourly employees
• Update all billheads and stipends (all hours

worked must be specifically indicated)

Potential FLSA Issues for FPS

• Failure to pay overtime when it is called for

○ Taking work home (access to emails) ○ Making/receiving job-related telephone calls at home ○ Working through lunch ○

Working before or after regular shifts

○ Job-related "volunteer" work

• Failure to pay accurate overtime pay

○ Not including longevity into blended rates ○ Not including bonus ■ Educational stipends ■ Attendance pay

Change in Culture

Consequences

Penalties

• "Any employer" who violates minimum wage or unpaid overtime

compensation laws may be liable for liquidated damages, which means double the damages.

○ Backpay (going back 3 years) ○ Double backpay for failing to pay overtime

• Fines (minimum of $200,000)
• Attorney’s fees and court costs
• Statute of limitations

○ 2 years ○ Wilful violation → 3 years statute of limitations and potential imprisonment

Next Steps As Dec. 1, 2016 Approaches...

Any Questions?

Contact , the Office of Human Resources!