SlideShare a Scribd company logo
Wage and Hour
Compliance Check
Jackson Walker LLP
Scott McElhaney
smcelhaney@jw.com
214-953-6147
© Jackson Walker LLP 2018 www.jw.com
CLICK TO EDIT MASTER TITLE STYLE
• The FLSA was enacted in 1938, and over
the past 80 years, it has had a dramatic
impact on U.S. employees by ensuring that
most receive at least a minimum wage for
all hours worked and an overtime premium
for hours worked in excess of 40 hours in a
workweek.
• The FLSA, however, is rather technical in
many respects, and companies should
regularly survey their pay practices to
ensure that they are meeting the Act’s
requirements.
The FLSA After 80 Years
© Jackson Walker LLP 2018
www.jw.com
CLICK TO EDIT MASTER TITLE STYLEThe FLSA After 80 Years
© Jackson Walker LLP 2018
www.jw.com
•Overview of the FLSA:
• Covered employers must pay Non-Exempt employees:
• Minimum wage
• Overtime for all hours worked over 40 in a workweek
• The Act sets out exemptions from the minimum wage and overtime pay
requirements for certain white-collar employees who are paid on a
salary basis.
CLICK TO EDIT MASTER TITLE STYLEThe FLSA After 80 Years
© Jackson Walker LLP 2018
www.jw.com
•Key challenges for compliance for Non-Exempt
Employees include:
• Ensuring that the Minimum Wage is paid for all hours worked
• Ensuring that Overtime is correctly calculated
CLICK TO EDIT MASTER TITLE STYLEThe FLSA After 80 Years
© Jackson Walker LLP 2018
www.jw.com
•Key challenges for compliance for Exempt Employees
include:
• Meeting one of the FLSA’s exemptions
• Not losing and exemption because of a pay practice – Deductions
CLICK TO EDIT MASTER TITLE STYLENon-Exempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Ensuring Minimum Wage is Paid for All Hours Worked
• Deductions from pay are not allowed if:
• Items are primarily for the benefit or convenience of employer
• The FLSA does not allow uniform costs , or other items considered to be primarily for
the benefit or convenience of the employer, to be included as wages. Thus, an
employer may not take credit for (i.e., deduct the cost of) such items in meeting
his/her obligations toward paying the minimum wage
• A deduction reduces employee earnings below required minimum wage
• Examples of illegal deductions: deductions for tools, damages to property, cash
register shortages
CLICK TO EDIT MASTER TITLE STYLENon-Exempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Ensuring Minimum Wage is Paid for All Hours Worked
• Hours worked may include:
• Time spent engaged to wait, on-call, in training, or travelling, as well
as sleep time.
• Work not requested but “suffered or permitted”
• Off the clock work
• Unapproved overtime
CLICK TO EDIT MASTER TITLE STYLENon-Exempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Ensuring Minimum Wage is Paid for All Hours Worked
• Waiting Time:
• Waiting time is work time if employee is unable to use the “waiting
time” effectively for his or her own purposes
• Waiting time is controlled by the employer
• Time does not count as paid waiting time if:
• The employee is completely relieved of duty
• Break time is long enough for employees to use it for their own
purpose
CLICK TO EDIT MASTER TITLE STYLENon-Exempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Ensuring Minimum Wage is Paid for All Hours Worked
• On Call Time:
• On Call Time is time worked if the employee must stay on premises,
or be so close that the time cannot effectively be used for own
purposes
• On Call Time is not time worked if the employee merely has to
provide contact information and the employee can use the time for
his or her own purposes
CLICK TO EDIT MASTER TITLE STYLENon-Exempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Ensuring Minimum Wage is Paid for All Hours Worked
• Breaks:
• Short rest breaks (20 minutes or less) are work time
• Meal periods (30 minutes or more) are not work time, but the
employee must be completely relieved of duty
CLICK TO EDIT MASTER TITLE STYLENon-Exempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Ensuring Minimum Wage is Paid for All Hours Worked
• Training time:
• But training time is not work time if it is
• Outside regular work hours
• Voluntary
• Not job related
AND
• Does not involve productive work
CLICK TO EDIT MASTER TITLE STYLENon-Exempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Ensuring Minimum Wage is Paid for All Hours Worked
• Travel time:
• Ordinary commuting is not work time
• Travel between job sites during normal work day is work time
• Out of town travel has special rules
CLICK TO EDIT MASTER TITLE STYLENon-Exempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Ensuring that Overtime is Correctly Calculated
• The Regular Rate is calculated based on all compensation paid in or
for a workweek.
• Compensation includes:
• Wages (salary, hourly and piece rates)
• Commissions
• Certain bonuses
• Tips received by eligible employees up
to $5.12 per hour (where the employer takes a tip credit)
• Reasonable cost of room, board, other “facilities” provided by the
employer for the employee’s benefit
CLICK TO EDIT MASTER TITLE STYLENon-Exempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Ensuring that Overtime is Correctly Calculated
• The Regular Rate is calculated based on all compensation paid in or
for a workweek.
• Exclusions from the Regular Rate:
• Gifts, discretionary bonuses
• Payments for time not worked
• Reimbursements for expenses
• Profit sharing plans, stock options
• Retirement and insurance plan contributions
• Overtime premium payments
CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Meeting One of the FLSA’s Exemptions
• To be exempt under the FLSA:
• Salary Test: Employee must be paid a predetermined and
fixed minimum salary that is not subject to reduction
because of quality or quantity of work performed
• Duties Test: Employee's job duties must primarily involve
executive, administrative, professional or certain other duties
as defined by the regulations
CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Meeting One of the FLSA’s Exemptions
• To be exempt under the FLSA:
• To be an exempt highly-compensated employee:
• Employee is paid more than $100,000 (current) per year
• Employee performs office or nonmanual work
• Employee customarily and regularly performs one
identifiable executive, administrative or professional duty.
CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Meeting One of the FLSA’s Exemptions
• Salary Test:
• Currently $455 per week (which equals $23,660/yr)
• Rule change to raise that level to $913 per week
($47,476/yr) and provide for automatic updating was
enjoined by a federal court
• DOL is undertaking rulemaking to revise the salary
test standard; most assume it will go up
CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Not Losing the Exemption Because of a Pay Practice
• The Salary Test requires payment of exempt employees
on a “Salary Basis”
• Regularly receives a predetermined amount of
compensation each pay period
• The compensation cannot be reduced because of
variations in the quality or quantity of work performed
• Need not be paid for any workweek when no work done
CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Not Losing the Exemption Because of a Pay Practice
• The Salary Basis – Deductions from Salary
• Deductions in salary are not allowed for absences
occasioned by the employer or operating requirements
of the business
• If employee is ready, willing, and able to work,
deductions not allowed if work not available
CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Not Losing the Exemption Because of a Pay Practice
• The Salary Basis – Deductions Allowed for
• Absence for full day or days for personal reasons
• Absence for full day or days for sickness if made under a
bona fide plan of providing wage replacement for such
absences
• Unpaid absence for FMLA leave
• Offsets for jury fees, witness fees, military pay
CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Not Losing the Exemption Because of a Pay Practice
• The Salary Basis – Deductions Allowed for
• Good faith penalty for violating safety rule of “major
significance”
• Unpaid disciplinary suspension for full day missed for
violation of workplace conduct rule
• May only pay proportional part of salary for time worked
in first or last week of employment
CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Not Losing the Exemption Because of a Pay Practice
• The Salary Basis – Examples of Improper Deductions:
• Partial day absence for parent-teacher conference
• Day deduction when closed for inclement weather
• Deduction of full salary for absence for jury duty
• Deduction for two days for illness if no sick pay plan
CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Meeting One of the FLSA’s Exemptions
• Duties Test:
• An employee may be exempt if, in addition to being paid on a
salary basis, he or she also meets the Duties Test
• Tests exist for Executive, Administrative, Professional, and
Outside Sales, as well as for certain computer employees
CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Meeting One of the FLSA’s Exemptions
• Duties Test:
• Executive
• Primary duty is management of enterprise or customarily recognized
department or subdivision
• Customarily and regularly directs work of two or more employees
• Authority to hire, or fire employees; or, recommendations as to
hiring, firing, advancement, promotion, change of status, given
particular weight
• (Also applies to a 20% owner actively engaged in management)
CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Meeting One of the FLSA’s Exemptions
• Duties Test:
• Administrative
• Primary duty is the performance of office or non-manual work
directly related to the management or general business operations of
the employer or the employer’s customers; and
• Primary duty include the exercise of discretion and independent
judgment in matters of significance.
o Includes activities such as analysis, making determinations, setting
prices, assessing risk, committing company resources, negotiating, and
similar tasks
CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Meeting One of the FLSA’s Exemptions
• Duties Test:
• Professional – Learned and Creative Professionals
• Primary duty must be the performance of work requiring advanced
knowledge in field of science or learning customarily acquired by a
prolonged course of specialized instruction; or
• Performance of work requiring invention, imagination, originality,
or talent in recognized artistic or creative field.
CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Meeting One of the FLSA’s Exemptions
• Duties Test:
• Outside Sales
• Primary duty is making sales or
• Obtaining orders or contracts for services for the use of facilities
paid by the customer and
• Customarily and regularly working away from employer’s place of
business
• There are no salary basis and salary level tests for the outside sales
exemption
CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
• Meeting One of the FLSA’s Exemptions
• Duties Test:
• Computer Employees (Additional $27.63/hr pay requirement)
• Primary duty entails:
• Application of systems analysis techniques and procedures,
including consultation with users about hardware, software, or
system function specifications;
• Design, development, documentation, analysis, creation,
testing, or modification of computer systems or programs
related to user or system design specifications;
• Design, documentation, testing creation, or modification of
machine operating systems; or
• Combination of above duties requiring equal skill level
CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues
© Jackson Walker LLP 2018
www.jw.com
•Meeting One of the FLSA’s Exemptions
• Exemption for Employees Paid Commissions by Retail Business
• Employee is exempt from overtime pay if:
• Employed by a retail or service establishment;
• More than half employee’s total earnings in representative period are
commissions on goods, services; and
• Total compensation divided by number of hours worked, or regular
rate, exceeds one and one-half times the minimum wage
• If all conditions are not met, exemption does not apply
CLICK TO EDIT MASTER TITLE STYLE
• What’s next?
• FLSA violations continue to be a target. FLSA litigation continues at
a high pace even though the number of cases filed under the FLSA
dropped in 2017 to 8,375 from an all-time high of 9,041 in 2016
• The FLSA is 80 years old, and changes to the economy and
workforce have led to calls for modernization of the law.
• Independent contractor-employee, operator, or provider status?
• Revamp duties test?
• Workweek flexibility?
What Next for the FLSA?
© Jackson Walker LLP 2018
www.jw.com
Thank You! Jackson Walker LLP
Scott McElhaney
smcelhaney@jw.com
214-953-6147

More Related Content

What's hot

Incentives: types of incentives
Incentives: types of incentivesIncentives: types of incentives
Incentives: types of incentives
jayjay15498
 
Advanced Wage and Hour Law for Dealerships
Advanced Wage and Hour Law for Dealerships  Advanced Wage and Hour Law for Dealerships
Advanced Wage and Hour Law for Dealerships
KPADealerWebinars
 
DOL Final Rule - Overtime
DOL Final Rule - OvertimeDOL Final Rule - Overtime
DOL Final Rule - Overtime
Results HR
 
SHRM Case Competition 2017
SHRM Case Competition 2017SHRM Case Competition 2017
SHRM Case Competition 2017
Roxana Diaz
 
SHRM case executive summary PDF
SHRM case executive summary PDFSHRM case executive summary PDF
SHRM case executive summary PDF
Roxana Diaz
 
Building Value In Proferssional Service Frims
Building Value In Proferssional Service FrimsBuilding Value In Proferssional Service Frims
Building Value In Proferssional Service Frims
PerformLaw
 
Laying Down the Groundwork for Financial Stability
Laying Down the Groundwork for Financial StabilityLaying Down the Groundwork for Financial Stability
Laying Down the Groundwork for Financial Stability
M. Laura Di Diego
 

What's hot (7)

Incentives: types of incentives
Incentives: types of incentivesIncentives: types of incentives
Incentives: types of incentives
 
Advanced Wage and Hour Law for Dealerships
Advanced Wage and Hour Law for Dealerships  Advanced Wage and Hour Law for Dealerships
Advanced Wage and Hour Law for Dealerships
 
DOL Final Rule - Overtime
DOL Final Rule - OvertimeDOL Final Rule - Overtime
DOL Final Rule - Overtime
 
SHRM Case Competition 2017
SHRM Case Competition 2017SHRM Case Competition 2017
SHRM Case Competition 2017
 
SHRM case executive summary PDF
SHRM case executive summary PDFSHRM case executive summary PDF
SHRM case executive summary PDF
 
Building Value In Proferssional Service Frims
Building Value In Proferssional Service FrimsBuilding Value In Proferssional Service Frims
Building Value In Proferssional Service Frims
 
Laying Down the Groundwork for Financial Stability
Laying Down the Groundwork for Financial StabilityLaying Down the Groundwork for Financial Stability
Laying Down the Groundwork for Financial Stability
 

Similar to Wage and Hour Compliance Check

Zalewski - Employee Classification: Defining the Employment Relationship
Zalewski - Employee Classification:  Defining the Employment RelationshipZalewski - Employee Classification:  Defining the Employment Relationship
Zalewski - Employee Classification: Defining the Employment Relationship
HR Florida State Council, Inc.
 
Significant Changes to Overtime Pay Rules and How They Will Impact You
Significant Changes to Overtime Pay Rules and How They Will Impact YouSignificant Changes to Overtime Pay Rules and How They Will Impact You
Significant Changes to Overtime Pay Rules and How They Will Impact You
Adair Buckner
 
Significant changes to overtime regulations may 25 2016
Significant changes to overtime regulations  may 25 2016Significant changes to overtime regulations  may 25 2016
Significant changes to overtime regulations may 25 2016
Allyson Lewis
 
Employment Law Update
Employment Law UpdateEmployment Law Update
Employment Law Update
Quarles & Brady
 
CLE -- FIRM CLE SEPTEMBER 2015 FLSA AND HOT TOPICS
CLE -- FIRM CLE SEPTEMBER 2015 FLSA AND HOT TOPICSCLE -- FIRM CLE SEPTEMBER 2015 FLSA AND HOT TOPICS
CLE -- FIRM CLE SEPTEMBER 2015 FLSA AND HOT TOPICS
Kimberly Stuart
 
HR for Small Businesses: Urgent Legal Matters - Marathon HR
HR for Small Businesses: Urgent Legal Matters - Marathon HRHR for Small Businesses: Urgent Legal Matters - Marathon HR
HR for Small Businesses: Urgent Legal Matters - Marathon HR
Jennifer Farwell
 
The Essentials of Wage and Hour Law
The Essentials of Wage and Hour Law The Essentials of Wage and Hour Law
The Essentials of Wage and Hour Law
KPADealerWebinars
 
September flsa compliance jll
September  flsa compliance jllSeptember  flsa compliance jll
September flsa compliance jll
G&A Partners
 
Changes in Overtime Regulations
Changes in Overtime RegulationsChanges in Overtime Regulations
Changes in Overtime Regulations
benefitexpress
 
Hiring Regulation for Startups
Hiring Regulation for StartupsHiring Regulation for Startups
Hiring Regulation for Startups
Olivia Chu
 
FLSA Compliance Countdown
FLSA Compliance CountdownFLSA Compliance Countdown
Strategies for Growing Employers: Avoiding Labor Code Landmines
Strategies for Growing Employers: Avoiding Labor Code LandminesStrategies for Growing Employers: Avoiding Labor Code Landmines
Strategies for Growing Employers: Avoiding Labor Code Landmines
Winston & Strawn LLP
 
Essentials of Wage and Hour Law for Dealerships
Essentials of Wage and Hour Law for DealershipsEssentials of Wage and Hour Law for Dealerships
Essentials of Wage and Hour Law for Dealerships
KPADealerWebinars
 
FLSA Exempt Or Not Exempt Ppt
FLSA Exempt Or Not Exempt PptFLSA Exempt Or Not Exempt Ppt
FLSA Exempt Or Not Exempt Ppt
ddubberly
 
FLSA Exemptions: How to Identify Exempt Employees
FLSA Exemptions: How to Identify Exempt EmployeesFLSA Exemptions: How to Identify Exempt Employees
FLSA Exemptions: How to Identify Exempt Employees
complianceonline123
 
FLSA and Regular Rate of Pay Calculations
FLSA and Regular Rate of Pay CalculationsFLSA and Regular Rate of Pay Calculations
FLSA and Regular Rate of Pay Calculations
Parsons Behle & Latimer
 
Salaried Workers and Overtime Pay
Salaried Workers and Overtime PaySalaried Workers and Overtime Pay
Salaried Workers and Overtime Pay
Overtime FLSA
 
Avoiding Workplace Pitfalls - Domestic and Foreign Employee Compliance
Avoiding Workplace Pitfalls - Domestic and Foreign Employee ComplianceAvoiding Workplace Pitfalls - Domestic and Foreign Employee Compliance
Avoiding Workplace Pitfalls - Domestic and Foreign Employee Compliance
Badmus & Associates
 
Show Them the Money: Wage & Hour Compliance (Series: Protecting Your Employee...
Show Them the Money: Wage & Hour Compliance (Series: Protecting Your Employee...Show Them the Money: Wage & Hour Compliance (Series: Protecting Your Employee...
Show Them the Money: Wage & Hour Compliance (Series: Protecting Your Employee...
Financial Poise
 
Wage and Hour Litigation on the Rise: Tips for Avoiding Class Action Lawsuit...
Wage and Hour Litigation on the Rise:  Tips for Avoiding Class Action Lawsuit...Wage and Hour Litigation on the Rise:  Tips for Avoiding Class Action Lawsuit...
Wage and Hour Litigation on the Rise: Tips for Avoiding Class Action Lawsuit...
EPAY Systems
 

Similar to Wage and Hour Compliance Check (20)

Zalewski - Employee Classification: Defining the Employment Relationship
Zalewski - Employee Classification:  Defining the Employment RelationshipZalewski - Employee Classification:  Defining the Employment Relationship
Zalewski - Employee Classification: Defining the Employment Relationship
 
Significant Changes to Overtime Pay Rules and How They Will Impact You
Significant Changes to Overtime Pay Rules and How They Will Impact YouSignificant Changes to Overtime Pay Rules and How They Will Impact You
Significant Changes to Overtime Pay Rules and How They Will Impact You
 
Significant changes to overtime regulations may 25 2016
Significant changes to overtime regulations  may 25 2016Significant changes to overtime regulations  may 25 2016
Significant changes to overtime regulations may 25 2016
 
Employment Law Update
Employment Law UpdateEmployment Law Update
Employment Law Update
 
CLE -- FIRM CLE SEPTEMBER 2015 FLSA AND HOT TOPICS
CLE -- FIRM CLE SEPTEMBER 2015 FLSA AND HOT TOPICSCLE -- FIRM CLE SEPTEMBER 2015 FLSA AND HOT TOPICS
CLE -- FIRM CLE SEPTEMBER 2015 FLSA AND HOT TOPICS
 
HR for Small Businesses: Urgent Legal Matters - Marathon HR
HR for Small Businesses: Urgent Legal Matters - Marathon HRHR for Small Businesses: Urgent Legal Matters - Marathon HR
HR for Small Businesses: Urgent Legal Matters - Marathon HR
 
The Essentials of Wage and Hour Law
The Essentials of Wage and Hour Law The Essentials of Wage and Hour Law
The Essentials of Wage and Hour Law
 
September flsa compliance jll
September  flsa compliance jllSeptember  flsa compliance jll
September flsa compliance jll
 
Changes in Overtime Regulations
Changes in Overtime RegulationsChanges in Overtime Regulations
Changes in Overtime Regulations
 
Hiring Regulation for Startups
Hiring Regulation for StartupsHiring Regulation for Startups
Hiring Regulation for Startups
 
FLSA Compliance Countdown
FLSA Compliance CountdownFLSA Compliance Countdown
FLSA Compliance Countdown
 
Strategies for Growing Employers: Avoiding Labor Code Landmines
Strategies for Growing Employers: Avoiding Labor Code LandminesStrategies for Growing Employers: Avoiding Labor Code Landmines
Strategies for Growing Employers: Avoiding Labor Code Landmines
 
Essentials of Wage and Hour Law for Dealerships
Essentials of Wage and Hour Law for DealershipsEssentials of Wage and Hour Law for Dealerships
Essentials of Wage and Hour Law for Dealerships
 
FLSA Exempt Or Not Exempt Ppt
FLSA Exempt Or Not Exempt PptFLSA Exempt Or Not Exempt Ppt
FLSA Exempt Or Not Exempt Ppt
 
FLSA Exemptions: How to Identify Exempt Employees
FLSA Exemptions: How to Identify Exempt EmployeesFLSA Exemptions: How to Identify Exempt Employees
FLSA Exemptions: How to Identify Exempt Employees
 
FLSA and Regular Rate of Pay Calculations
FLSA and Regular Rate of Pay CalculationsFLSA and Regular Rate of Pay Calculations
FLSA and Regular Rate of Pay Calculations
 
Salaried Workers and Overtime Pay
Salaried Workers and Overtime PaySalaried Workers and Overtime Pay
Salaried Workers and Overtime Pay
 
Avoiding Workplace Pitfalls - Domestic and Foreign Employee Compliance
Avoiding Workplace Pitfalls - Domestic and Foreign Employee ComplianceAvoiding Workplace Pitfalls - Domestic and Foreign Employee Compliance
Avoiding Workplace Pitfalls - Domestic and Foreign Employee Compliance
 
Show Them the Money: Wage & Hour Compliance (Series: Protecting Your Employee...
Show Them the Money: Wage & Hour Compliance (Series: Protecting Your Employee...Show Them the Money: Wage & Hour Compliance (Series: Protecting Your Employee...
Show Them the Money: Wage & Hour Compliance (Series: Protecting Your Employee...
 
Wage and Hour Litigation on the Rise: Tips for Avoiding Class Action Lawsuit...
Wage and Hour Litigation on the Rise:  Tips for Avoiding Class Action Lawsuit...Wage and Hour Litigation on the Rise:  Tips for Avoiding Class Action Lawsuit...
Wage and Hour Litigation on the Rise: Tips for Avoiding Class Action Lawsuit...
 

More from Jackson Walker LLP

Recent Trends in Oil & Gas Litigation
Recent Trends in Oil & Gas LitigationRecent Trends in Oil & Gas Litigation
Recent Trends in Oil & Gas Litigation
Jackson Walker LLP
 
Religion and the Workplace
Religion and the WorkplaceReligion and the Workplace
Religion and the Workplace
Jackson Walker LLP
 
Employee Privacy and Background Checks
Employee Privacy and Background ChecksEmployee Privacy and Background Checks
Employee Privacy and Background Checks
Jackson Walker LLP
 
2018 Employment and Labor Law Update: The Year of #MeToo
2018 Employment and Labor Law Update: The Year of #MeToo2018 Employment and Labor Law Update: The Year of #MeToo
2018 Employment and Labor Law Update: The Year of #MeToo
Jackson Walker LLP
 
Top 10 Mistakes Employers Make and How to Keep from Making Them
Top 10 Mistakes Employers Make and How to Keep from Making ThemTop 10 Mistakes Employers Make and How to Keep from Making Them
Top 10 Mistakes Employers Make and How to Keep from Making Them
Jackson Walker LLP
 
Religious Accommodation and Discrimination - Religion and the Workplace
Religious Accommodation and Discrimination - Religion and the WorkplaceReligious Accommodation and Discrimination - Religion and the Workplace
Religious Accommodation and Discrimination - Religion and the Workplace
Jackson Walker LLP
 
Whistleblowers and Retaliation: How to Prevent Getting Sued
Whistleblowers and Retaliation: How to Prevent Getting SuedWhistleblowers and Retaliation: How to Prevent Getting Sued
Whistleblowers and Retaliation: How to Prevent Getting Sued
Jackson Walker LLP
 
State and Local Law: Solutions for Multistate Employers
State and Local Law: Solutions for Multistate EmployersState and Local Law: Solutions for Multistate Employers
State and Local Law: Solutions for Multistate Employers
Jackson Walker LLP
 
Strategies for Sharing a Business Aircraft
Strategies for Sharing a Business AircraftStrategies for Sharing a Business Aircraft
Strategies for Sharing a Business Aircraft
Jackson Walker LLP
 
Choice of Entity and Tax Considerations
Choice of Entity and Tax ConsiderationsChoice of Entity and Tax Considerations
Choice of Entity and Tax Considerations
Jackson Walker LLP
 
Tax Benefits of Investing in QOFs: A New Tax Shelter Approved by Congress!
Tax Benefits of Investing in QOFs: A New Tax Shelter Approved by Congress!Tax Benefits of Investing in QOFs: A New Tax Shelter Approved by Congress!
Tax Benefits of Investing in QOFs: A New Tax Shelter Approved by Congress!
Jackson Walker LLP
 
Choice of Entity and Key Contents of Organization Documents - January 2017
Choice of Entity and Key Contents of Organization Documents - January 2017Choice of Entity and Key Contents of Organization Documents - January 2017
Choice of Entity and Key Contents of Organization Documents - January 2017
Jackson Walker LLP
 
Denbury v. Texas Rice Texas Rice II: The Texas Supreme Court Affirms Common C...
Denbury v. Texas Rice Texas Rice II: The Texas Supreme Court Affirms Common C...Denbury v. Texas Rice Texas Rice II: The Texas Supreme Court Affirms Common C...
Denbury v. Texas Rice Texas Rice II: The Texas Supreme Court Affirms Common C...
Jackson Walker LLP
 

More from Jackson Walker LLP (13)

Recent Trends in Oil & Gas Litigation
Recent Trends in Oil & Gas LitigationRecent Trends in Oil & Gas Litigation
Recent Trends in Oil & Gas Litigation
 
Religion and the Workplace
Religion and the WorkplaceReligion and the Workplace
Religion and the Workplace
 
Employee Privacy and Background Checks
Employee Privacy and Background ChecksEmployee Privacy and Background Checks
Employee Privacy and Background Checks
 
2018 Employment and Labor Law Update: The Year of #MeToo
2018 Employment and Labor Law Update: The Year of #MeToo2018 Employment and Labor Law Update: The Year of #MeToo
2018 Employment and Labor Law Update: The Year of #MeToo
 
Top 10 Mistakes Employers Make and How to Keep from Making Them
Top 10 Mistakes Employers Make and How to Keep from Making ThemTop 10 Mistakes Employers Make and How to Keep from Making Them
Top 10 Mistakes Employers Make and How to Keep from Making Them
 
Religious Accommodation and Discrimination - Religion and the Workplace
Religious Accommodation and Discrimination - Religion and the WorkplaceReligious Accommodation and Discrimination - Religion and the Workplace
Religious Accommodation and Discrimination - Religion and the Workplace
 
Whistleblowers and Retaliation: How to Prevent Getting Sued
Whistleblowers and Retaliation: How to Prevent Getting SuedWhistleblowers and Retaliation: How to Prevent Getting Sued
Whistleblowers and Retaliation: How to Prevent Getting Sued
 
State and Local Law: Solutions for Multistate Employers
State and Local Law: Solutions for Multistate EmployersState and Local Law: Solutions for Multistate Employers
State and Local Law: Solutions for Multistate Employers
 
Strategies for Sharing a Business Aircraft
Strategies for Sharing a Business AircraftStrategies for Sharing a Business Aircraft
Strategies for Sharing a Business Aircraft
 
Choice of Entity and Tax Considerations
Choice of Entity and Tax ConsiderationsChoice of Entity and Tax Considerations
Choice of Entity and Tax Considerations
 
Tax Benefits of Investing in QOFs: A New Tax Shelter Approved by Congress!
Tax Benefits of Investing in QOFs: A New Tax Shelter Approved by Congress!Tax Benefits of Investing in QOFs: A New Tax Shelter Approved by Congress!
Tax Benefits of Investing in QOFs: A New Tax Shelter Approved by Congress!
 
Choice of Entity and Key Contents of Organization Documents - January 2017
Choice of Entity and Key Contents of Organization Documents - January 2017Choice of Entity and Key Contents of Organization Documents - January 2017
Choice of Entity and Key Contents of Organization Documents - January 2017
 
Denbury v. Texas Rice Texas Rice II: The Texas Supreme Court Affirms Common C...
Denbury v. Texas Rice Texas Rice II: The Texas Supreme Court Affirms Common C...Denbury v. Texas Rice Texas Rice II: The Texas Supreme Court Affirms Common C...
Denbury v. Texas Rice Texas Rice II: The Texas Supreme Court Affirms Common C...
 

Recently uploaded

Rokita Releases Soccer Stadium Legal Opinion
Rokita Releases Soccer Stadium Legal OpinionRokita Releases Soccer Stadium Legal Opinion
Rokita Releases Soccer Stadium Legal Opinion
Abdul-Hakim Shabazz
 
fnaf lore.pptx ...................................
fnaf lore.pptx ...................................fnaf lore.pptx ...................................
fnaf lore.pptx ...................................
20jcoello
 
Understanding about ITR-1 and Documentation
Understanding about ITR-1 and DocumentationUnderstanding about ITR-1 and Documentation
Understanding about ITR-1 and Documentation
CAAJAYKUMAR4
 
XYZ-v.-state-of-Maharashtra-Bombay-HC-Writ-Petition-6340-2023.pdf
XYZ-v.-state-of-Maharashtra-Bombay-HC-Writ-Petition-6340-2023.pdfXYZ-v.-state-of-Maharashtra-Bombay-HC-Writ-Petition-6340-2023.pdf
XYZ-v.-state-of-Maharashtra-Bombay-HC-Writ-Petition-6340-2023.pdf
bhavenpr
 
Patenting_Innovations_in_3D_Printing_Prosthetics.pptx
Patenting_Innovations_in_3D_Printing_Prosthetics.pptxPatenting_Innovations_in_3D_Printing_Prosthetics.pptx
Patenting_Innovations_in_3D_Printing_Prosthetics.pptx
ssuser559494
 
原版制作(PSU毕业证书)宾州州立大学公园分校毕业证学历证书一模一样
原版制作(PSU毕业证书)宾州州立大学公园分校毕业证学历证书一模一样原版制作(PSU毕业证书)宾州州立大学公园分校毕业证学历证书一模一样
原版制作(PSU毕业证书)宾州州立大学公园分校毕业证学历证书一模一样
osenwakm
 
Bharatiya Nagarik Suraksha Sanhita power.pptx
Bharatiya Nagarik Suraksha Sanhita power.pptxBharatiya Nagarik Suraksha Sanhita power.pptx
Bharatiya Nagarik Suraksha Sanhita power.pptx
ShivkumarIyer18
 
Sangyun Lee, 'Why Korea's Merger Control Occasionally Fails: A Public Choice ...
Sangyun Lee, 'Why Korea's Merger Control Occasionally Fails: A Public Choice ...Sangyun Lee, 'Why Korea's Merger Control Occasionally Fails: A Public Choice ...
Sangyun Lee, 'Why Korea's Merger Control Occasionally Fails: A Public Choice ...
Sangyun Lee
 
What are the common challenges faced by women lawyers working in the legal pr...
What are the common challenges faced by women lawyers working in the legal pr...What are the common challenges faced by women lawyers working in the legal pr...
What are the common challenges faced by women lawyers working in the legal pr...
lawyersonia
 
Guide on the use of Artificial Intelligence-based tools by lawyers and law fi...
Guide on the use of Artificial Intelligence-based tools by lawyers and law fi...Guide on the use of Artificial Intelligence-based tools by lawyers and law fi...
Guide on the use of Artificial Intelligence-based tools by lawyers and law fi...
Massimo Talia
 
办理(waikato毕业证书)新西兰怀卡托大学毕业证双学位证书原版一模一样
办理(waikato毕业证书)新西兰怀卡托大学毕业证双学位证书原版一模一样办理(waikato毕业证书)新西兰怀卡托大学毕业证双学位证书原版一模一样
办理(waikato毕业证书)新西兰怀卡托大学毕业证双学位证书原版一模一样
9ib5wiwt
 
Lifting the Corporate Veil. Power Point Presentation
Lifting the Corporate Veil. Power Point PresentationLifting the Corporate Veil. Power Point Presentation
Lifting the Corporate Veil. Power Point Presentation
seri bangash
 
在线办理(SU毕业证书)美国雪城大学毕业证成绩单一模一样
在线办理(SU毕业证书)美国雪城大学毕业证成绩单一模一样在线办理(SU毕业证书)美国雪城大学毕业证成绩单一模一样
在线办理(SU毕业证书)美国雪城大学毕业证成绩单一模一样
osenwakm
 
2015pmkemenhub163.pdf. 2015pmkemenhub163.pdf
2015pmkemenhub163.pdf. 2015pmkemenhub163.pdf2015pmkemenhub163.pdf. 2015pmkemenhub163.pdf
2015pmkemenhub163.pdf. 2015pmkemenhub163.pdf
CIkumparan
 
Defending Weapons Offence Charges: Role of Mississauga Criminal Defence Lawyers
Defending Weapons Offence Charges: Role of Mississauga Criminal Defence LawyersDefending Weapons Offence Charges: Role of Mississauga Criminal Defence Lawyers
Defending Weapons Offence Charges: Role of Mississauga Criminal Defence Lawyers
HarpreetSaini48
 
Business and Corporate Case Update (2024)
Business and Corporate Case Update (2024)Business and Corporate Case Update (2024)
Business and Corporate Case Update (2024)
Wendy Couture
 
Incometax Compliance_PF_ ESI- June 2024
Incometax  Compliance_PF_ ESI- June 2024Incometax  Compliance_PF_ ESI- June 2024
Incometax Compliance_PF_ ESI- June 2024
EbizfilingIndia
 
Synopsis On Annual General Meeting/Extra Ordinary General Meeting With Ordina...
Synopsis On Annual General Meeting/Extra Ordinary General Meeting With Ordina...Synopsis On Annual General Meeting/Extra Ordinary General Meeting With Ordina...
Synopsis On Annual General Meeting/Extra Ordinary General Meeting With Ordina...
Syed Muhammad Humza Hussain
 
原版仿制(aut毕业证书)新西兰奥克兰理工大学毕业证文凭毕业证雅思成绩单原版一模一样
原版仿制(aut毕业证书)新西兰奥克兰理工大学毕业证文凭毕业证雅思成绩单原版一模一样原版仿制(aut毕业证书)新西兰奥克兰理工大学毕业证文凭毕业证雅思成绩单原版一模一样
原版仿制(aut毕业证书)新西兰奥克兰理工大学毕业证文凭毕业证雅思成绩单原版一模一样
9ib5wiwt
 
Matthew Professional CV experienced Government Liaison
Matthew Professional CV experienced Government LiaisonMatthew Professional CV experienced Government Liaison
Matthew Professional CV experienced Government Liaison
MattGardner52
 

Recently uploaded (20)

Rokita Releases Soccer Stadium Legal Opinion
Rokita Releases Soccer Stadium Legal OpinionRokita Releases Soccer Stadium Legal Opinion
Rokita Releases Soccer Stadium Legal Opinion
 
fnaf lore.pptx ...................................
fnaf lore.pptx ...................................fnaf lore.pptx ...................................
fnaf lore.pptx ...................................
 
Understanding about ITR-1 and Documentation
Understanding about ITR-1 and DocumentationUnderstanding about ITR-1 and Documentation
Understanding about ITR-1 and Documentation
 
XYZ-v.-state-of-Maharashtra-Bombay-HC-Writ-Petition-6340-2023.pdf
XYZ-v.-state-of-Maharashtra-Bombay-HC-Writ-Petition-6340-2023.pdfXYZ-v.-state-of-Maharashtra-Bombay-HC-Writ-Petition-6340-2023.pdf
XYZ-v.-state-of-Maharashtra-Bombay-HC-Writ-Petition-6340-2023.pdf
 
Patenting_Innovations_in_3D_Printing_Prosthetics.pptx
Patenting_Innovations_in_3D_Printing_Prosthetics.pptxPatenting_Innovations_in_3D_Printing_Prosthetics.pptx
Patenting_Innovations_in_3D_Printing_Prosthetics.pptx
 
原版制作(PSU毕业证书)宾州州立大学公园分校毕业证学历证书一模一样
原版制作(PSU毕业证书)宾州州立大学公园分校毕业证学历证书一模一样原版制作(PSU毕业证书)宾州州立大学公园分校毕业证学历证书一模一样
原版制作(PSU毕业证书)宾州州立大学公园分校毕业证学历证书一模一样
 
Bharatiya Nagarik Suraksha Sanhita power.pptx
Bharatiya Nagarik Suraksha Sanhita power.pptxBharatiya Nagarik Suraksha Sanhita power.pptx
Bharatiya Nagarik Suraksha Sanhita power.pptx
 
Sangyun Lee, 'Why Korea's Merger Control Occasionally Fails: A Public Choice ...
Sangyun Lee, 'Why Korea's Merger Control Occasionally Fails: A Public Choice ...Sangyun Lee, 'Why Korea's Merger Control Occasionally Fails: A Public Choice ...
Sangyun Lee, 'Why Korea's Merger Control Occasionally Fails: A Public Choice ...
 
What are the common challenges faced by women lawyers working in the legal pr...
What are the common challenges faced by women lawyers working in the legal pr...What are the common challenges faced by women lawyers working in the legal pr...
What are the common challenges faced by women lawyers working in the legal pr...
 
Guide on the use of Artificial Intelligence-based tools by lawyers and law fi...
Guide on the use of Artificial Intelligence-based tools by lawyers and law fi...Guide on the use of Artificial Intelligence-based tools by lawyers and law fi...
Guide on the use of Artificial Intelligence-based tools by lawyers and law fi...
 
办理(waikato毕业证书)新西兰怀卡托大学毕业证双学位证书原版一模一样
办理(waikato毕业证书)新西兰怀卡托大学毕业证双学位证书原版一模一样办理(waikato毕业证书)新西兰怀卡托大学毕业证双学位证书原版一模一样
办理(waikato毕业证书)新西兰怀卡托大学毕业证双学位证书原版一模一样
 
Lifting the Corporate Veil. Power Point Presentation
Lifting the Corporate Veil. Power Point PresentationLifting the Corporate Veil. Power Point Presentation
Lifting the Corporate Veil. Power Point Presentation
 
在线办理(SU毕业证书)美国雪城大学毕业证成绩单一模一样
在线办理(SU毕业证书)美国雪城大学毕业证成绩单一模一样在线办理(SU毕业证书)美国雪城大学毕业证成绩单一模一样
在线办理(SU毕业证书)美国雪城大学毕业证成绩单一模一样
 
2015pmkemenhub163.pdf. 2015pmkemenhub163.pdf
2015pmkemenhub163.pdf. 2015pmkemenhub163.pdf2015pmkemenhub163.pdf. 2015pmkemenhub163.pdf
2015pmkemenhub163.pdf. 2015pmkemenhub163.pdf
 
Defending Weapons Offence Charges: Role of Mississauga Criminal Defence Lawyers
Defending Weapons Offence Charges: Role of Mississauga Criminal Defence LawyersDefending Weapons Offence Charges: Role of Mississauga Criminal Defence Lawyers
Defending Weapons Offence Charges: Role of Mississauga Criminal Defence Lawyers
 
Business and Corporate Case Update (2024)
Business and Corporate Case Update (2024)Business and Corporate Case Update (2024)
Business and Corporate Case Update (2024)
 
Incometax Compliance_PF_ ESI- June 2024
Incometax  Compliance_PF_ ESI- June 2024Incometax  Compliance_PF_ ESI- June 2024
Incometax Compliance_PF_ ESI- June 2024
 
Synopsis On Annual General Meeting/Extra Ordinary General Meeting With Ordina...
Synopsis On Annual General Meeting/Extra Ordinary General Meeting With Ordina...Synopsis On Annual General Meeting/Extra Ordinary General Meeting With Ordina...
Synopsis On Annual General Meeting/Extra Ordinary General Meeting With Ordina...
 
原版仿制(aut毕业证书)新西兰奥克兰理工大学毕业证文凭毕业证雅思成绩单原版一模一样
原版仿制(aut毕业证书)新西兰奥克兰理工大学毕业证文凭毕业证雅思成绩单原版一模一样原版仿制(aut毕业证书)新西兰奥克兰理工大学毕业证文凭毕业证雅思成绩单原版一模一样
原版仿制(aut毕业证书)新西兰奥克兰理工大学毕业证文凭毕业证雅思成绩单原版一模一样
 
Matthew Professional CV experienced Government Liaison
Matthew Professional CV experienced Government LiaisonMatthew Professional CV experienced Government Liaison
Matthew Professional CV experienced Government Liaison
 

Wage and Hour Compliance Check

  • 1. Wage and Hour Compliance Check Jackson Walker LLP Scott McElhaney smcelhaney@jw.com 214-953-6147 © Jackson Walker LLP 2018 www.jw.com
  • 2. CLICK TO EDIT MASTER TITLE STYLE • The FLSA was enacted in 1938, and over the past 80 years, it has had a dramatic impact on U.S. employees by ensuring that most receive at least a minimum wage for all hours worked and an overtime premium for hours worked in excess of 40 hours in a workweek. • The FLSA, however, is rather technical in many respects, and companies should regularly survey their pay practices to ensure that they are meeting the Act’s requirements. The FLSA After 80 Years © Jackson Walker LLP 2018 www.jw.com
  • 3. CLICK TO EDIT MASTER TITLE STYLEThe FLSA After 80 Years © Jackson Walker LLP 2018 www.jw.com •Overview of the FLSA: • Covered employers must pay Non-Exempt employees: • Minimum wage • Overtime for all hours worked over 40 in a workweek • The Act sets out exemptions from the minimum wage and overtime pay requirements for certain white-collar employees who are paid on a salary basis.
  • 4. CLICK TO EDIT MASTER TITLE STYLEThe FLSA After 80 Years © Jackson Walker LLP 2018 www.jw.com •Key challenges for compliance for Non-Exempt Employees include: • Ensuring that the Minimum Wage is paid for all hours worked • Ensuring that Overtime is correctly calculated
  • 5. CLICK TO EDIT MASTER TITLE STYLEThe FLSA After 80 Years © Jackson Walker LLP 2018 www.jw.com •Key challenges for compliance for Exempt Employees include: • Meeting one of the FLSA’s exemptions • Not losing and exemption because of a pay practice – Deductions
  • 6. CLICK TO EDIT MASTER TITLE STYLENon-Exempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Ensuring Minimum Wage is Paid for All Hours Worked • Deductions from pay are not allowed if: • Items are primarily for the benefit or convenience of employer • The FLSA does not allow uniform costs , or other items considered to be primarily for the benefit or convenience of the employer, to be included as wages. Thus, an employer may not take credit for (i.e., deduct the cost of) such items in meeting his/her obligations toward paying the minimum wage • A deduction reduces employee earnings below required minimum wage • Examples of illegal deductions: deductions for tools, damages to property, cash register shortages
  • 7. CLICK TO EDIT MASTER TITLE STYLENon-Exempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Ensuring Minimum Wage is Paid for All Hours Worked • Hours worked may include: • Time spent engaged to wait, on-call, in training, or travelling, as well as sleep time. • Work not requested but “suffered or permitted” • Off the clock work • Unapproved overtime
  • 8. CLICK TO EDIT MASTER TITLE STYLENon-Exempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Ensuring Minimum Wage is Paid for All Hours Worked • Waiting Time: • Waiting time is work time if employee is unable to use the “waiting time” effectively for his or her own purposes • Waiting time is controlled by the employer • Time does not count as paid waiting time if: • The employee is completely relieved of duty • Break time is long enough for employees to use it for their own purpose
  • 9. CLICK TO EDIT MASTER TITLE STYLENon-Exempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Ensuring Minimum Wage is Paid for All Hours Worked • On Call Time: • On Call Time is time worked if the employee must stay on premises, or be so close that the time cannot effectively be used for own purposes • On Call Time is not time worked if the employee merely has to provide contact information and the employee can use the time for his or her own purposes
  • 10. CLICK TO EDIT MASTER TITLE STYLENon-Exempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Ensuring Minimum Wage is Paid for All Hours Worked • Breaks: • Short rest breaks (20 minutes or less) are work time • Meal periods (30 minutes or more) are not work time, but the employee must be completely relieved of duty
  • 11. CLICK TO EDIT MASTER TITLE STYLENon-Exempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Ensuring Minimum Wage is Paid for All Hours Worked • Training time: • But training time is not work time if it is • Outside regular work hours • Voluntary • Not job related AND • Does not involve productive work
  • 12. CLICK TO EDIT MASTER TITLE STYLENon-Exempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Ensuring Minimum Wage is Paid for All Hours Worked • Travel time: • Ordinary commuting is not work time • Travel between job sites during normal work day is work time • Out of town travel has special rules
  • 13. CLICK TO EDIT MASTER TITLE STYLENon-Exempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Ensuring that Overtime is Correctly Calculated • The Regular Rate is calculated based on all compensation paid in or for a workweek. • Compensation includes: • Wages (salary, hourly and piece rates) • Commissions • Certain bonuses • Tips received by eligible employees up to $5.12 per hour (where the employer takes a tip credit) • Reasonable cost of room, board, other “facilities” provided by the employer for the employee’s benefit
  • 14. CLICK TO EDIT MASTER TITLE STYLENon-Exempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Ensuring that Overtime is Correctly Calculated • The Regular Rate is calculated based on all compensation paid in or for a workweek. • Exclusions from the Regular Rate: • Gifts, discretionary bonuses • Payments for time not worked • Reimbursements for expenses • Profit sharing plans, stock options • Retirement and insurance plan contributions • Overtime premium payments
  • 15. CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Meeting One of the FLSA’s Exemptions • To be exempt under the FLSA: • Salary Test: Employee must be paid a predetermined and fixed minimum salary that is not subject to reduction because of quality or quantity of work performed • Duties Test: Employee's job duties must primarily involve executive, administrative, professional or certain other duties as defined by the regulations
  • 16. CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Meeting One of the FLSA’s Exemptions • To be exempt under the FLSA: • To be an exempt highly-compensated employee: • Employee is paid more than $100,000 (current) per year • Employee performs office or nonmanual work • Employee customarily and regularly performs one identifiable executive, administrative or professional duty.
  • 17. CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Meeting One of the FLSA’s Exemptions • Salary Test: • Currently $455 per week (which equals $23,660/yr) • Rule change to raise that level to $913 per week ($47,476/yr) and provide for automatic updating was enjoined by a federal court • DOL is undertaking rulemaking to revise the salary test standard; most assume it will go up
  • 18. CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Not Losing the Exemption Because of a Pay Practice • The Salary Test requires payment of exempt employees on a “Salary Basis” • Regularly receives a predetermined amount of compensation each pay period • The compensation cannot be reduced because of variations in the quality or quantity of work performed • Need not be paid for any workweek when no work done
  • 19. CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Not Losing the Exemption Because of a Pay Practice • The Salary Basis – Deductions from Salary • Deductions in salary are not allowed for absences occasioned by the employer or operating requirements of the business • If employee is ready, willing, and able to work, deductions not allowed if work not available
  • 20. CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Not Losing the Exemption Because of a Pay Practice • The Salary Basis – Deductions Allowed for • Absence for full day or days for personal reasons • Absence for full day or days for sickness if made under a bona fide plan of providing wage replacement for such absences • Unpaid absence for FMLA leave • Offsets for jury fees, witness fees, military pay
  • 21. CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Not Losing the Exemption Because of a Pay Practice • The Salary Basis – Deductions Allowed for • Good faith penalty for violating safety rule of “major significance” • Unpaid disciplinary suspension for full day missed for violation of workplace conduct rule • May only pay proportional part of salary for time worked in first or last week of employment
  • 22. CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Not Losing the Exemption Because of a Pay Practice • The Salary Basis – Examples of Improper Deductions: • Partial day absence for parent-teacher conference • Day deduction when closed for inclement weather • Deduction of full salary for absence for jury duty • Deduction for two days for illness if no sick pay plan
  • 23. CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Meeting One of the FLSA’s Exemptions • Duties Test: • An employee may be exempt if, in addition to being paid on a salary basis, he or she also meets the Duties Test • Tests exist for Executive, Administrative, Professional, and Outside Sales, as well as for certain computer employees
  • 24. CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Meeting One of the FLSA’s Exemptions • Duties Test: • Executive • Primary duty is management of enterprise or customarily recognized department or subdivision • Customarily and regularly directs work of two or more employees • Authority to hire, or fire employees; or, recommendations as to hiring, firing, advancement, promotion, change of status, given particular weight • (Also applies to a 20% owner actively engaged in management)
  • 25. CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Meeting One of the FLSA’s Exemptions • Duties Test: • Administrative • Primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and • Primary duty include the exercise of discretion and independent judgment in matters of significance. o Includes activities such as analysis, making determinations, setting prices, assessing risk, committing company resources, negotiating, and similar tasks
  • 26. CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Meeting One of the FLSA’s Exemptions • Duties Test: • Professional – Learned and Creative Professionals • Primary duty must be the performance of work requiring advanced knowledge in field of science or learning customarily acquired by a prolonged course of specialized instruction; or • Performance of work requiring invention, imagination, originality, or talent in recognized artistic or creative field.
  • 27. CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Meeting One of the FLSA’s Exemptions • Duties Test: • Outside Sales • Primary duty is making sales or • Obtaining orders or contracts for services for the use of facilities paid by the customer and • Customarily and regularly working away from employer’s place of business • There are no salary basis and salary level tests for the outside sales exemption
  • 28. CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues © Jackson Walker LLP 2018 www.jw.com • Meeting One of the FLSA’s Exemptions • Duties Test: • Computer Employees (Additional $27.63/hr pay requirement) • Primary duty entails: • Application of systems analysis techniques and procedures, including consultation with users about hardware, software, or system function specifications; • Design, development, documentation, analysis, creation, testing, or modification of computer systems or programs related to user or system design specifications; • Design, documentation, testing creation, or modification of machine operating systems; or • Combination of above duties requiring equal skill level
  • 29. CLICK TO EDIT MASTER TITLE STYLEExempt Employee Issues © Jackson Walker LLP 2018 www.jw.com •Meeting One of the FLSA’s Exemptions • Exemption for Employees Paid Commissions by Retail Business • Employee is exempt from overtime pay if: • Employed by a retail or service establishment; • More than half employee’s total earnings in representative period are commissions on goods, services; and • Total compensation divided by number of hours worked, or regular rate, exceeds one and one-half times the minimum wage • If all conditions are not met, exemption does not apply
  • 30. CLICK TO EDIT MASTER TITLE STYLE • What’s next? • FLSA violations continue to be a target. FLSA litigation continues at a high pace even though the number of cases filed under the FLSA dropped in 2017 to 8,375 from an all-time high of 9,041 in 2016 • The FLSA is 80 years old, and changes to the economy and workforce have led to calls for modernization of the law. • Independent contractor-employee, operator, or provider status? • Revamp duties test? • Workweek flexibility? What Next for the FLSA? © Jackson Walker LLP 2018 www.jw.com
  • 31. Thank You! Jackson Walker LLP Scott McElhaney smcelhaney@jw.com 214-953-6147