FLSA
Fair Labor Standards Act
29 U.S.C., Sec. 201 et seq.
Presented by Ramon Vigil
Cuddy & McCarthy Law Firm
NMASBO Fall Conference
September 12, 2012
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Table of Contents

The Law

Compliance
 Record
keeping
 Prevention:
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Fair Labor Standards Act
Enacted in 1938
 Minimum Wage/ Overtime/ Child Labor
 US Dept of Labor
 Purpose: To prevent abuse of employees
by employers

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OVERTIME
More than 40 hours in a work week
(7 consecutive 24-hour periods)
 1 ½ times hourly rate
 May give compensatory time off
 Hours worked – all time employee on duty

4
Work Week & Daily Hours

Employer may set

Work Week
 Daily Work Schedule
 To Avoid Overtime
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The Law:

Exempt Employees
 Executives
 Administrators
 Professionals

Non-Exempt Employees
 Custodial workers
 Bus drivers
 Cafeteria workers
 Secretaries
 Instructional assistants
PAYMENT BY SALARY DOES NOT DETERMINE
EXEMPT OR NON-EXEMPT STATUS
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Test for Exemption

Two-Part Test
 Salary
> $455 p/week / $23,660 p/year
 Duties
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Exempt Employees
Executive Employees
 Administrative Employees
 Learned Professional Employees
 Creative Professional Employees
 Computer Employees
 Teachers

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Examples of Exempt Employees
Dept. Supervisors of support staff
employees (Food Service Manager,
Transportation Supervisor, Office
Manager, Custodian and Maintenance
Supervisor)
 Supt., Asst. Supt., Principals, Asst. Prin.,
Directors, Coordinators
 Teachers

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Non-Exempt Employees
Secretaries
 Instructional Assistants
 Custodial Workers
 Bus Drivers
 Maintenance Workers
 Cafeteria Workers

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Compensatory Time
29 C.F.R., Sec. 553
1 ½ hours comp time for each hour of OT
worker
 Memorialize agreement before the work is
performed
 Up to 160 OT hours, i.e., 240 comp time hours
 Reasonable opportunity to take comp time

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RECORDKEEPING
Without GOOD
records, you will not
be able to pull
enough rabbits out of
the hat.
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Record Keeping
Employer responsible for record keeping
 Employee required to follow Employer’s
record keeping procedures
 Time cards / Time sheets
 District Overtime Policy followed

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Without GOOD records . . .
Employee won’t be
paid accurate
amount!
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Good records for ALL employees:

Exempt employees:








Non-exempt employees:
Name
 All of the data for exempt
employees, plus
Home address
 Regular hourly rate for any
Date of birth (if under 19)
workweek when OT is worked
Gender
 Basis on which wages are
Occupation
paid
Time of day and day of week
 Amount and nature of
that workweek begins
compensation that is excluded
Basis on which wages are
from regular rate
paid
 Hours worked each workday
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Accurate Employee Files

Employees must update information in
employees whenever circumstances
change (address, phone number, marital
status, dependents, etc.)
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COMPLICATING FACTORS

Dual jobs

Occasional or sporadic work

Volunteers
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DUAL JOBS

Bus driver – instructional assistant

Coach – instructional assistant

Bus driver – custodian

Instructional assistant – gate keeper

And the list goes on . . .
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Occasional or Sporadic Work
Must not be performance of work similar to
work regularly performed
 Cannot be a condition of employment
 Regular part-time jobs do not qualify
 Examples:

 Cafeteria
worker stays late to assist with an
evening banquet
 Secretary takes up tickets at a ballgame
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Occasional or Sporadic Work

If it becomes routine it is no longer occasional
or sporadic work. Employer should find a
way to pay OT or rotate the assignment

For example:
 Taking
tickets for the basketball season as opposed
to taking tickets for the one championship game
hosted by your District
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Volunteers
Must be different work from work regularly
performed (Parent Volunteer Exception)
 May not be coerced or condition of
employment (Free-Will; Charitable)
 No expectation of compensation
 Should qualify under and comply with
District’s Volunteer Policy

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Break Periods

Meal periods involving no duties and lasting
30 minutes or more

Rest periods of 20 minutes or more
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Out of Town Travel
Non-working hours are generally not
compensable
 Must not require performance of duties or
other work
 If required to be available, employee must be
paid!
 If there is no where to go, and all they can do
is sit there, employee must be paid!

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Permitting/suffering
Employer must make
employee
leave
or
pay
them!
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Permitting/suffering
If the employer “suffers or permits” an
employee to work overtime, even after telling
employee they cannot, then the employer is
responsible for payment.
 It doesn’t matter if the work is performed at
home or at school.
 Mere promulgation of the rule is not sufficient
to avoid overtime liability.

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Recordkeeping

This is everyone’s proof for accurate pay

Bad example

Good example

The best record is a time clock!
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Report Pay Errors Immediately
Review Pay Check for Errors in Pay
 Report Error to Immediate Supervisor
 Submit Information About Error in Writing
for Correction ASAP
 DON’T WAIT !!!!!
 The Sooner Errors are Caught, the Sooner
they Can Be FIXED.

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Strategies For Employer to minimize
overtime pay:





Employer May Adjust schedules
Minimize dual employment
Use exempt employees as much as possible
Make certain “extra duties” do not lead to overtime
Develop, implement and enforce overtime time
policies
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PREVENTION




Properly classify employees as exempt and nonexempt
The employer and the employee may not agree to
waive the employee’s rights to overtime
Staff must realize that compliance is not optional and
that failure to comply places the District at risk
Perform a FLSA audit
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Computing Overtime
OT = 1 ½ Times Hourly Rate over 40 hrs
 $8.00 p/hr 7 hr/day 35 hr work week
 Works 3 extra hours during week
 $8 x 38 = $304

Works 8 extra hours during week
 ($8 x 40=$320) + ($12 x 3=$36)=$356

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Computing Comp Time
OT=1 ½ hrs for each hr worked over 40 hr
 $8.00 p/hr 7 hr day 35 hr week
 Works 5 hrs extra during week (40 hrs)
5 hrs of comp time
 Works 10 hours extra during week (45 hrs)
(5 hrs) + (5 x 1 ½ = 7½) = 12 ½ hr comp
time

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Computing Blended OT Rate
Job 1 = $10 p/hr & Job 2 = $ 6 /hr
 Job 1 worked 40 hrs in work week
 Job 2 worked 20 hours in work week
 OT rate = 1 ½ (($10 x 40) + ($6 x 20))/60

1
½ ($400 + $120)/60
 1 ½ ($520)/60
 1 ½ ($8.67) = $13.01
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QUESTIONS & ANSWERS
Q&A
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For additional information
or assistance, contact:
Ramon Vigil, Jr.
The Cuddy & McCarthy Law Firm
rvigil@cuddymccarthy.com
www.dol.gov
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