Regardless of who you supported in the recent Presidential election, one thing both candidates agreed on was that the Fair Labor Standards Act, or FLSA, is not going away. The FLSA is a Depression-era law that has seen relatively little change in nearly 90 years. It created a federal minimum wage and required that most employees be paid overtime of 1.5 times their regular hourly rate when an employee works more than 40 hours in a workweek. So why, after so many years, do employers regularly trip up on this law, sometimes costing them in the hundreds of thousands of dollars?
On March 24, 2020, the Department of Labor (“DOL”) issued the first guidance related to the new Families First Coronavirus Response Act. It answered a few questions of general interest, but a lot of questions that relate to small businesses (by that, I’m talking about businesses with under 50 employees) are still up in the air. The DOL further indicated that we should not hold our breath for any regulations before the enactment date. Instead, regulations are promised sometime in April.
New effective date
The biggest surprise was the DOL announcing that the law is now going to become effective on April 1 rather than April 2. Taking advantage of some flexible language in the Act, the DOL obviously decided that it made the most sense to make a pay-related law effective on the first day of most employers’ pay periods, rather than on the second day, which was likely to create payroll nightmares. So, April 1 it is.
Benefits are not retroactive
Sometimes, what seems obvious in employment law, actually isn’t. Last week, a Florida federal jury found in favor of a law firm in its former paralegal’s overtime lawsuit against it. The former paralegal, who was a title agent performing real estate transactional work, alleged that she was improperly denied overtime under the Fair Labor Standards…
Today’s guest post comes from Jeff Wilcox, an associate at the Hill Ward Henderson firm in Tampa. He will be presenting at the Florida Law Alliance Fall Employment Law Conference taking place on Friday, November 10, 2017 (see below for more details):
Are you making deductions from your exempt employees’ pay? If so, you may lose the right to classify the employee as exempt and, as a result, may end up owing the employee overtime pay for all overtime hours worked over the last two, or possibly three, years.
As a general rule, the Fair Labor Standards Act (FLSA) does not permit deductions from an exempt employee’s salary, because the salary cannot be dependent on the number of days or hours he or she works, or even the employee’s quantity or quality of work. There are, however, limited exceptions where deductions can be made. For example, if the employee is absent from work for one or more full days for personal reasons, a deduction is permissible. Moreover, if the employee is absent from work for one or more full days for sickness or disability, and the deduction is made in accordance with a bona fide “sick leave” plan, policy, or practice, a deduction is again permissible. Other limited exceptions exist, and it is important for employers not to deduct from an exempt employee’s salary unless one of the exceptions applies.
Join us in Fort Lauderdale in November
The moment we have all been waiting for (dreading?) has arrived — the Department of Labor issued its “Overtime” Final Rule. The details are available on the DOL’s website, with the “official” Final Rule to be published in the Federal Regulations tomorrow.
As anyone who follows HR or employment law knows, this Final Rule…
Football fans around the globe may be rejoicing at the official start of the NFL season, but the cheering may be somewhat less than usual this year. That’s because a number of current and former NFL cheerleaders have filed lawsuits in Florida, New Jersey, New York, California and other states for violations of state and federal wage and hour laws, including the Fair Labor Standards Act (FLSA). The cheerleaders are claiming they were significantly underpaid—or in some cases not paid at all—for their services, which include performing during games, rehearsing prior to games, and attending community events. Teams that have been sued include the Tampa Bay Buccaneers, New York Jets, Buffalo Bills, Oakland Raiders and Cincinnati Bengals.
In the Florida Complaint, plaintiff Manouchcar Pierre-Val filed a proposed federal class action seeking to represent a class of cheerleaders who worked for the Tampa Bay Bucs within the last three years, and who were allegedly not compensated at the required minimum wages due under the FLSA. The lawsuit claims that the cheerleaders were paid only $100 per game for an average of 8 home games per season, plus limited wages for appearances made at paid corporate events. However, according to the complaint, the cheerleaders actually worked many more hours each week and each year for which they were not properly compensated as required by federal and Florida law. Plaintiff Pierre-Val alleges she received about $2.00 per hour for all of her services.
Eve is employed as a counter person at Cars-R-Us, an auto parts store with twenty employees. Eve recently returned to work after giving birth. She asked Cars-R-Us for periodic breaks to express her breast milk. She also asked the company provide her with a dedicated, private room to use her breast pump.
Which of the following statements is correct?
A. Cars-R-Us can deny Eve’s request because it has less than 50 employees.
B. Cars-R-Us can deny Eve’s request unless she has worked for the Company more than 1,250 hours during the consecutive twelve-month period preceding her request.
C. Cars-R-Us should permit Eve reasonable lactation breaks, but it may require her to use the women’s bathroom to express milk.
D. Cars-R-Us should permit Eve to take a reasonable lactation break in a private location, unless to do so would pose an undue hardship.
Scenario. Timmy Tee is employed as a non-exempt public relations coordinator for Go Gators Enterprises. Timmy’s regular work schedule is 8:00 a.m. to 5:00 p.m., Monday through Friday. Go Gators Enterprises requires Timmy to attend a two-day marketing conference in Atlanta, Georgia. Timmy travels by bus on Wednesday, from 10:00 a.m. to 4:00 p.m. Timmy returns home by bus on Saturday, traveling from 2:00 p.m. to 8:00 p.m.
Which of the following statements is correct?
A. Go Gators Enterprises must pay for all of Timmy’s travel time, since it required him to attend the marketing conference.
B. Go Gators Enterprises must pay for the Wednesday bus trip, since these hours cut across Timmy’s normal work hours.
C. Go Gators Enterprises must pay for the Saturday travel between 2:00 and 5:00 p.m., the travel time which cuts across Timmy’s normal work hours. This is required even though Timmy does not normally work on Saturdays.
D. Both B and C are correct.
When President Franklin D. Roosevelt signed the Fair Labor Standards Act of 1938 (FLSA) into law, it was a landmark and welcome law that originally only applied to about 20% of the labor force (mostly factory workers). The law banned oppressive child labor, set minimum wage at 25 cents per hour, and set a maximum workweek at 44 hours.
Over the past 75 years, the FLSA has morphed into a complex and highly-litigated area of the law that regulates nearly all workplaces. It is now almost universally despised by employers. Decades of amendments have made the FLSA so expansive it requires multi-volume sets of legal treatises to fully comprehend, its nuances ensure almost no employer can fully comply, and plaintiffs’ attorneys crank out lawsuits by the dozens, knowing a single dollar owed entitles them to recover all of the attorney’s fees spent prosecuting the case.