fair labor standards act (flsa) angela moore indiana state library intern july 31, 2013
TRANSCRIPT
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Presenter Introduction
Rising 2nd year law student
Not a lawyer
Summer legal intern at ISL
Former librarian at Berne Public Library
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Disclaimer This is legal information, not legal advice
I cannot apply the law to your specific situation
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Overview FLSA and relevant Indiana state law
How they apply to Indiana libraries
Who is covered? General Requirements
Minimum wage Overtime pay
Compensatory time (aka “comp time”) Exemptions Youth restrictions
Miscellaneous
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Who is Covered? Government agencies (e.g. public libraries)
have “enterprise coverage” All employees
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Who is covered? Employees
In general, someone who works for you Defined in 29 USC 203(e)
Not employees: Independent contractors
Don’t be tricky: tested by “economic reality” Volunteers of public agencies: 29 USC 203(e)(4)
But, employees cannot volunteer to perform the same services they are employed to do
Because public agencies (e.g. political subdivisions such as public libraries) can have unpaid volunteers, they can have unpaid interns
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Minimum Wage $7.25 per hour worked
Exemptions for administrative, executive, professional, & computer-related positions
Proposed legislation
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Hours Worked What counts?
Time employee is “suffered” or “permitted” to work Employer has the duty to stop extra work
Unscheduled time, work from home, etc. are paid Breaks (including meals) are paid unless:
Relieved of duties, and Able to use time for own purposes
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Hours Worked Training
Paid if one of the following: During regular working hours Mandatory Job-related, or Employee performs productive work for employer
Employee-initiated educational courses are not hours worked
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Proposed Legislation
Image from Microsoft Office Online Clip Art
“Fair Minimum Wage Act of 2013” Identical bills: HR 1010 and S 460 Referred to committee Would raise minimum wage to $8.20 after 90 days Would create system for yearly changes to
minimum wage, 95¢ increases for first 2 years
Will it pass?
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Overtime Employees 18 or older can work any number
of hours per day/week Overtime pay kicks in for hours worked over
40 per week Not calculated per day
Employer sets day workweek begins Overtime rate can be no lower than time & ½ Applies to hourly & salaried employees Exemptions for administrative, executive,
professional, & computer-related positions
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Compensatory Time Section 7(o) of FLSA: 29 USC 207(o)
Give additional paid time off instead of overtime pay
Public agencies (e.g. public libraries) Pursuant to an agreement You are not required to give comp time instead of
overtime pay No more than 240 accumulated hours Receive 1.5 hours comp time per overtime hour
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Compensatory Time Example:
Employee works 50 hours in one work week 10 hours overtime 2 ways to compensate employee:
Pay for 55 hours (40 hours plus 10 hours × 1.5), or Pay for 40 hours, employee receives 15 hours comp time
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Exemptions
http://www.dol.gov/whd/regs/compliance/fairpay/fs17a_overview.htm
“To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week. Job titles do not determine exempt status.”
Job must be one of the following: Administrative Executive Professional Computer-related (exception to salaried rule)
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Administrative Exemption
http://www.dol.gov/whd/regs/compliance/fairpay/fs17c_administrative.htm
Salaried At least $455 per week
Primary duty: Office work, or Non-manual work directly related to management
or general business operations Exercises discretion and independent
judgment in matters of significance
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Executive Exemption
http://www.dol.gov/whd/regs/compliance/fairpay/fs17b_executive.htm
Salaried At least $455 per week
Primary duty Managing the whole or a recognized department
or subdivision Regular direction of at least 2 full-time
employees (or their equivalent) Authority to hire/fire, or recommendations
given particular weight
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Professional Exemption
http://www.dol.gov/whd/regs/compliance/fairpay/fs17d_professional.htm
Salaried At least $455 per week
Primary duty Perform work requiring advanced knowledge &
predominantly intellectual in character Job requires advanced knowledge
Field of science or learning Customarily acquired through intellectual
instruction (e.g. by getting a degree)
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Computer-Related Exemption
http://www.dol.gov/whd/regs/compliance/fairpay/fs17e_computer.htm
Requirements Wage
Salaried at $455 per week or more, OR Hourly at $27.63 or more
Skilled worker in the computer field e.g. systems analyst, programmer, software engineer
Not included: Computer hardware repair/manufacture Employees whose work is facilitated by computers
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Exemptions Recap Administrative Executive Professional Computer-related
Wage + nature of job
Exempt from overtime pay
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Youth Restrictions Under 14
Very narrow allowances (e.g. child actors) Ages 14-15
FLSA Age 16 & Age 17
Indiana law 18 and above
Not considered youth
U.S. Dept. of Labor’s Child Labor Bulletin 101http://www.dol.gov/whd/regs/compliance/childlabor101.pdf
Indiana Child Labor FAQs: www.in.gov/dol/2398.htm
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Youth Restrictions
http://www.dol.gov/whd/regs/compliance/childlabor101_text.htm
Ages 14-15 Cannot work:
During school hours, before 7am, or after 7pm (or 9pm from June 1 – Labor Day)
Over 3 hours on school days/8 hours on non-school days Over 18 hours in school weeks/40 hours for non-school
No hazardous jobs Operating machinery, using ladders, etc.
School hours, days, weeks of worker’s local public school system, even if private-, home-schooled
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Youth Restrictions - Homeschoolers Federal law says no working during “school
hours” as set by local public school system, Indiana law says can work during “traditional school hours” with proper permission. Consult your lawyer
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Youth Restrictions Age 16 – Indiana law
May work: 8 hours per day 30 hours per week Until 10:00 p.m. on nights followed by a school day
With parental permission may work: 9 hours per day, Until 12:00 a.m. on nights NOT followed by a school day, 40 hours per school week, And/or 48 hours per non-school week.
With written school permission may work: After 7:30am and before 3:30pm
May not work: More than 6 days per employer's work week Before 6:00 am In hazardous jobs
www.in.gov/dol/2398.htm
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Youth Restrictions Age 17 – Indiana Law
May work: 8 hours per school day 30 hours per week Until 10:00 p.m. on nights followed by a school day
With written parental permission, may work: 9 hours per day 40 hours per school week 48 hours per non-school week until 11:30 p.m. on nights followed by a school day or until 1:00 a.m. on nights followed by a school day, but not on
consecutive nights and not more than two school nights per week With written school permission may work:
After 7:30am and before 3:30pm May not work
More than 6 days per employer's work week Before 6:00 a.m. on school days In hazardous jobs www.in.gov/dol/2398.htm
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Youth Restrictions Breaks
Shift of 6 or more hours One or two breaks totaling 30 minutes or more Can be unpaid Document all breaks
Withdrawn/high school graduates If over 16, not bound to the hour restrictions/break
requirements
http://www.dol.gov/whd/regs/compliance/childlabor101_text.htm; www.in.gov/dol/2398.htm
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Youth Restrictions Youth Minimum Wage
$4.25 for first 90 calendar days of employment $7.25 after first 90 days/18th birthday Cannot displace workers to hire new youths at
$4.25
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Youth Restrictions Work permits
Indiana state law For minors 14-17 Required during the summer, too Can only obtain once hired Obtained through local accredited school (even if
home-schooled)
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Youth Restrictions Exceptions to work during school hours:
Work-Study and Career Exploration Governed by Code of Federal Regulations
29 CFR 570.36 and 29 CFR 570.37 Must be school-administered and school-supervised
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Recordkeeping
http://www.dol.gov/whd/regs/compliance/whdfs21.pdf; http://www.in.gov/icpr/index.htm
Records for each non-exempt worker, no particular form Keep for at least two years, some things three years:
1. Employee's full name and social security number. 2. Address, including zip code. 3. Birth date, if younger than 19. 4. Sex and occupation. 5. Time and day of week when employee's workweek begins. 6. Hours worked each day.7. Total hours worked each workweek. 8. Basis on which employee's wages are paid (hourly/weekly/etc.)9. Regular hourly pay rate. 10. Total daily or weekly straight-time earnings. 11. Total overtime earnings for the workweek. 12. All additions to or deductions from the employee's wages. 13. Total wages paid each pay period. 14. Date of payment and the pay period covered by the payment.
Don’t forget about Indiana Commission on Public Records
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Nursing Mother Employees Amendments to FLSA through Affordable Care
Act: 29 USC 207 (r) Reasonable break time each time mother (non-
exempt employee) needs to express milk For one year after child’s birth
A place (cannot be a bathroom) Shielded from view Free from intrusion by coworkers or public
Exemption if <50 employees and undue hardship State law: IC 5-10-6-2
(For state/political subdivisions) Breaks must be paid, but should coincide with other breaks
http://www.dol.gov/whd/regs/compliance/whdfs73.htm; http://www.in.gov/legislative/ic/code/title5/ar10/ch6.html
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Mandatory FLSA Posting “Every employer of employees subject to the
Fair Labor Standards Act's minimum wage provisions must post, and keep posted, a notice explaining the Act in a conspicuous place in all of their establishments so as to permit employees to readily read it.”
Available at:http://www.dol.gov/whd/regs/compliance/posters/flsa.htm
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Resources US Department of Labor
http://www.dol.gov/whd/flsa/ http://www.dol.gov/compliance/laws/comp-flsa.htm Hotline: 1-866-4USWAGE (1-866-487-9243)
FLSA for gov’t employers http://www.dol.gov/whd/regs/compliance/whdfs7.pdf
Indiana Department of Labor http://www.in.gov/dol/ FAQs: http://www.in.gov/dol/2345.htm Child Labor FAQs: www.in.gov/dol/2398.htm