Vision Payroll

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.

States continued their crackdown on employers with overtime violations as New York announced a $1.23 million settlement with Finkelstein Morgan LLC and J. Siebold Construction Corporation (“Siebold”). The settlement represents all the unpaid overtime for the period from October 2002 through August 2006 plus damages. Siebold employed the workers to renovate several building owned or managed by Finkelstein Morgan. During that time period 284 employees who worked more than forty hours were paid straight time and not time-and-a-half as required by state and federal law.

On July 13, 2008, a new law went into effect mandating treble damages for wage and hour violations by Massachusetts employers. Prior to passage of Chapter 80 of the Acts of 2008, triple damages were allowed, but treated as discretionary by state judges. Generally, employers who acted in good faith were not assessed treble damages under the old law. Now, employers’ intent is irrelevant and three times the lost wages or other benefits will be awarded on all wage and hour lawsuits where the plaintiff prevails. Employers will also be required to pay “the costs of the litigation and reasonable attorneys’ fees.” We strongly recommend that all Massachusetts employers review their wage and hour policies and consult with their attorneys if they have any questions.

Jerry and James Schram, brothers and business partners in Schram’s Excavating of Vancouver, WA agreed to pay $356,000 in back wages and unpaid workers’ compensation premiums. As part of a guilty plea, both brothers were given two years probation and 240 hours of community service. Jerry Schram will also serve 30 days in jail as part of the settlement. The back wages were to compensate employees who did not receive overtime pay even though they worked more than 40 hours a week. Schram’s Excavating pled guilty to hiding information used to set their workers’ comp premiums, which resulted in the company paying lower premiums.

This week’s question comes from Felix, a payroll manager: I have an employee who worked 34 hours last week. Since we pay eight hours for Independence Day even though we don’t work, do I need to pay two hours of overtime? Answer: Nothing in the Fair Labor Standards Act (FLSA) requires payment for time not worked. If an employer voluntarily pays for time not worked such as holidays, those hours need not be counted toward the FLSA overtime requirement for hours worked in excess of 40. Note that other federal or state laws or contractual agreements may require payment of holiday hours. Also, if an employee actually works on a holiday, those hours would be counted toward the overtime requirement. Consult your attorney if you have further questions.