Vision Payroll

Under the Fair Labor Standards Act (FLSA), employees must be paid a minimum hourly wage and an overtime premium of one and one-half times the regular rate of pay for hours worked in excess of forty per week. This is the one of a continuing series that discusses FLSA exemptions. The executive exemption allows employees who qualify as “executives” to be exempted from both minimum wage and overtime requirements. Earlier posts discussed that to qualify for the executive exemption, employees must be involved in management. Management duties have been defined as “interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; maintaining production or sales records for use in supervision or control; appraising employees’ productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety and security of the employees or the property; planning and controlling the budget; and monitoring or implementing legal compliance measures.” The regulations specifically state that other duties not listed above may also be included in the duties of management. State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about the executive exemption.

Under the Fair Labor Standards Act (FLSA), employees must be paid a minimum hourly wage and an overtime premium of one and one-half times the regular rate of pay for hours worked in excess of forty per week. This is the one of a continuing series that discusses FLSA exemptions. The executive exemption allows employees who qualify as “executives” to be exempted from both minimum wage and overtime requirements. An earlier post listed four tests that if met would qualify an employee as an executive. Alternatively, any employee who owns a twenty percent or more equity interest in his place of employment and is actively involved in its management will qualify for the executive exemption.

Under the Fair Labor Standards Act (FLSA), employees must be paid a minimum hourly wage and an overtime premium of one and one-half times the regular rate of pay for hours worked in excess of forty per week. Unless exempt, all employees must receive a minimum wage and overtime premium. Paying an employee salary or giving an employee a certain job title does not automatically exempt an employee from the FLSA. Only statutorily enacted exemptions, as clarified by Department of Labor regulations, exempt an employee from minimum wage requirements, overtime requirements, or both. Even then, employer actions such as making improper deductions from salaried, exempt employees can result in the loss of exemption for that employee and others. This is the one of a continuing series that discusses FLSA exemptions. The executive exemption allows employees who qualify as “executives” to be exempted from both minimum wage and overtime requirements. Only employees “employed in a bona fide executive capacity” qualify for the exemption. Any employee who meets all the following tests shall be considered an “executive” for this purpose: 1) The employee must receive a salary of at least $455 per week, not including board, lodging, or other facilities. 2) The employee’s primary duty must be management of the enterprise (or a department or subdivision thereof) in which the employee is employed. 3) The employee must “customarily and regularly” direct the work of at least two other employees. 4) The employee must have the authority to hire and fire other employees or have the power to suggest and recommend which employees are hired, fired, advanced, promoted, or otherwise changed in status and such suggestions and recommendations must be “given particular weight.” Future posts will provide further clarification of certain terms in the executive exemption as well as provide other tests that may qualify an employee as an executive. State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about the executive exemption.

The US Department of Labor recently issued non-Administrator signed Opinion Letter FLSA2008-10NA. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA). Unlike signed Opinion Letters, unsigned Opinion Letters do not “provide a potential good faith reliance defense for violations of the FLSA.” This Opinion Letter discusses whether service coordinators qualify for the learned professional exemption of the FLSA. Service coordinators act as a concierge for the program participants, by assessing their needs, facilitating independent living, intervening on their behalf if necessary, and documenting all of the above. Although a bachelor’s degree and several years experience is preferred, candidates may qualify if an RN or with an associate’s degree in health or human services and one year of experience. The Department of Labor concluded that “[b]ecause the academic requirements for service coordinators may be met with an associate’s degree, the position lacks the requirement of ‘knowledge of an advanced type…customarily acquired by a prolonged course of specialized intellectual instruction.’” Therefore, service coordinators do not qualify as exempt under the FLSA. State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.

The US Department of Labor recently issued non-Administrator signed Opinion Letter FLSA2008-9NA. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA). Unlike signed Opinion Letters, unsigned Opinion Letters do not “provide a potential good faith reliance defense for violations of the FLSA.” This Opinion Letter discusses whether “jailers” who lack the power to make arrests qualify as “law enforcement personnel” partially exempt from overtime requirements. Although jailers may lack the power to make arrests, they qualify as “security personnel in correctional institutions” and thus qualify for the partial overtime exemption. State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.

The US Department of Labor recently issued non-Administrator signed Opinion Letter FLSA2008-8NA. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA). Unlike signed Opinion Letters, unsigned Opinion Letters do not “provide a potential good faith reliance defense for violations of the FLSA.” This Opinion Letter discusses whether on-call time is compensable under the FLSA. A non-profit ambulance rescue service requires employees to be on-call from 6 am to 8 am and from 4 pm to 6 pm five days a week. The employee uses a pager while on-call and must respond to call with the ambulance within eight minutes. The question to be answered is whether the employee is “engaged to wait” (compensable) or “waiting to be engaged” (non-compensable). During the winter months, when there is an average of one call every four hour shift, the frequency of calls along with other factors mandated that the employees be compensated for their time. During the non-winter months, when calls were usually zero, one, or two per week, the on-call time would be non-compensable. State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.

The US Department of Labor recently issued non-Administrator signed Opinion Letter FLSA2008-7NA. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA). Unlike signed Opinion Letters, unsigned Opinion Letters do not “provide a potential good faith reliance defense for violations of the FLSA.” This Opinion Letter, in a question and answer format, discusses written policies regarding break and meal periods. The conclusions are as follows: 1) An employee, in violation of company policy, did not take a meal break or notify his supervisor that he did not take a break during a week in which he worked less than forty hours. No additional compensation is due the employee as long as he receives at least minimum wage for all hours worked, including the missed meal break. 2) The missed meal break that was worked counts toward the forty hour threshold for paying overtime to non-exempt employees. If the employee works more than forty hours, “the employee must be must be paid for all hours worked at the agreed rate plus the overtime premium.” 3) The answers to Q1 and Q2 are the same if, instead of missing a meal break, the employee arrives to work early or leaves work late in violation of written policy. 4) A written advisory to the employee not to work “unrecorded work hours” and that such work would subject the employee to disciplinary action is not necessarily enough to change the answer to Q3. Generally, it is management’s responsibility to make sure that such work should not be performed. 5) An employee receives time and one half pay that is not required under the FLSA, but paid due to company policy or contractual obligation, e.g., the employee is paid the premium if he works more than eight hours in a day. This premium may be credited toward any overtime premium required under the FLSA. Also, the additional pay does not need to be included in the calculation of the employee’s “regular” rate that is used to calculate the overtime premium. 6) Wages may be paid based on a methodology that rounds time worked “to the nearest five minutes, or the nearest one tenth or quarter of an hour” as long as, in the long run, the system does not fail to compensate employees properly for time worked. State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.

The US Department of Labor recently issued Administrator signed Opinion Letter FLSA2008-5. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA). This Opinion Letter discusses whether a school district can add an extra week to a pay period about five times over a twenty-eight year period and still comply with the Fair Labor Standards Act. For example, an employee who earns $13 per hour is paid a bi-weekly salary of $1,040 ($13 per hour X 40 hours per week X 52 weeks per year ÷ 26 pay periods per year). Non-exempt employees are paid overtime for hours worked in excess of forty in any particular week. Since there is a day or two more than fifty-two weeks in every year, the district would sometimes have twenty-seven pay periods. To maintain its policy of twenty-six pay periods per year, the district adds a third week to one pay period, but still pays the same salary. The employee in the example above would still receive $1,040 for a three-week period. Since the rate of pay is $8.67 for the three-week period, ($1,040 ÷ 120 [40 hours per week X 3 weeks]), the pay rate exceeds federal minimum wage. Furthermore, since non-exempt employees were paid overtime for hours worked in excess of forty in any of the three weeks, the policy did not violate the FLSA. State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.

The US Department of Labor recently issued Administrator signed Opinion Letter FLSA2008-4. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act. This Opinion Letter discusses whether a requirement to wear a certain type of shoe constitutes a uniform. It also discusses whether the employer is allowed to deduct a portion of the cost of the shoes from the employee’s pay, even if such deduction causes the employee’s pay rate to be below minimum wage. In this case, the employer “requires employees to wear ‘dark-colored’ shoes without prescribing any particular quality, brand, style, model, or type.” Optionally, an employee may purchase such shoes from a vendor through a program administered by the employer that allows the employee to elect to have the employer pay the cost of the shoes and deduct the cost from the employee’s paycheck. Since the employer’s only requirements were the color and that the shoes have non-slip soles and not be open-toed, they were not considered to be part of a uniform. Also, as the shoes were not part of a uniform and the employer did not deduct more than the actual cost of the shoes, the shoes can be considered “other facilities” furnished by the employer and therefore part of the wages paid the employee. State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.

The federal minimum wage is set to increase from $5.85 per hour to $6.55 per hour for work performed after July 23, 2008. Under current law, an additional increase to $7.25 per hour is scheduled for work performed after July 23, 2009. The Fair Labor Standards Act sets the minimum wage for nonexempt, covered employees. Employees in states with laws that set higher minimum wages are entitled to higher minimum wages. Different minimum wages may be paid to certain classes of employees in some situations, including tipped employees, disabled workers, full-time students, student-learners and youth under age 20 in their first 90 consecutive calendar days of employment. If state and federal rules differ, employers are generally required to follow the rules that are more beneficial to employees. Contact Vision Payroll if you have any questions on minimum wage law changes.