Just about every day, it seems the Department of Labor wins or settles another expensive lawsuit based on the “simple” laws of wage and hour. Below are eight beyond-the-basics FLSA questions that address wage and hour questions. How knowledgeable are you?
1. Q. Can we give an extra week of vacation to cover any overtime?
A. Providing vacation rather than overtime is not legal under the Fair Labor Standards Act (FLSA).
2. Q. Do general standards exist for exempt employees who do work beyond the normal workweek? For example, if they travel during the weekend for work, is it expected that they would get a day off later in compensation?
A. It is not expected that an exempt employee receive a day off after working on a weekend. Exempt employees are expected to work when duty calls.
3. Q. Can an employer deduct paid benefit leave, such as sick leave or personal leave, in half-day increments from an exempt employee if it is a written company policy?
A. You can deduct less than a day’s time from an exempt employee’s allotted sick time, vacation time, or personal time. You cannot deduct from an exempt employee’s paycheck for less than a day’s absence for sickness, disability, or personal leave.
4. Q. If an exempt employee calls in sick for a whole day and doesn’t have any accrued sick time on the books, can we dock his or her pay for the day?
A. Yes, as long as the deduction is made in accordance with a bona fide plan, policy, or practice of providing compensation for loss of salary caused by this type of sickness or disability. Remember, though, that you cannot deduct for less than 1 day’s absence.
5. Q. If an employee is exempt, can you still choose to classify him or her as nonexempt and pay him or her hourly with overtime?
Yes. You can classify any employee as hourly and pay the employee overtime, even employees who could otherwise pass the exemption tests.
6. Q. How do you distribute overtime among employees?
A. Distribution of overtime is a constant source of controversy in industry, both union and nonunion. Whether overtime is considered desirable because of the premium pay or undesirable because of the loss of free time, employees of similar skill should have equal opportunity or equal burden for overtime assignments.
A practical method is for the department supervisor to maintain a roster recording each employee’s overtime work. A properly kept roster will prevent unfair distribution of overtime and will help settle disputes. Ordinarily, in maintaining a roster, an employee who declines overtime is charged with a “time at bat,” and his or her name goes to the bottom of the roster.
7. Q. Our workweek is 35 hours, plus we pay lunch breaks of 1 hour each day, totaling 40 hours paid. If our employees work 36 hours and are paid for 41, is that extra hour considered overtime, or can we pay them straight time?
A. You can pay them straight time. The FLSA requires that overtime be paid for each hour worked in excess of 40 hours in a week. Since the lunch breaks are not “hours worked,” they don’t have to be counted toward overtime. Therefore, each employee’s total hours worked in that week would be only 36.
8. Q. All of our employees participate in a day of volunteering. Do we have to pay them on this day?
Charitable work performed at the employer’s request as part of the job or during work hours is considered hours worked. Charitable work will not be considered hours worked if:
- It is completely voluntary (even if the program is sponsored by the employer).
- It is performed outside of work hours.
If employees get the impression that their jobs would be in jeopardy or that they would receive fewer perks for failing to contribute to charity work, a court could say that the hours were not voluntary, but were coerced. This time could then be considered hours worked. In addition, employees cannot perform volunteer work for an organization that employs them if the work is similar to that for which they are paid.
(Source: The HR Daily Advisor, www.blr.com)
Companies both large and small are finding themselves in legal battles against employees for not complying with overtime laws as outlined in the Fair Labor Standards Act of 1938 (FLSA). The complex regulations found in the FLSA code governing proper payment of wages is overseen by the Department of Labor and can result in hefty fines, or possibly prison time, for multiple violations. In this and subsequent posts, we will look at some of the potential pitfalls, guidelines and laws governing wages as outlined in the FLSA.
