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February 9, 2008
Human Resources for Long Term Care
A Human Resources Teleconference Series for
Long Term Care Human Resources Personnel
Session II: Wage & Hour Issues
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Brian R. Purtell
Wisconsin Health Care Association & DeWitt Ross & Stevens S.C.
(608) 252-9366
brian@whca.com
brp@dewittross.com
&Mindy Rowland Buenger
DeWitt Ross & Stevens S.C.
(608) 252-9320
mrb@dewittross.com
Human Resources for Long Term Care
Session II: Wag & Hour Issues
Presenters:
mailto:brian@whca.commailto:brp@dewittross.commailto:mrb@dewittross.commailto:mrb@dewittross.commailto:brp@dewittross.commailto:brian@whca.com8/14/2019 Mindy Rowland Ccap
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Overview and Review of the FairLabor Standard Act (FLSA)
On-Call/24 hour coverage
Exempt vs. Non-exempt
Break/Lunch time requirements
Posting expectations
OvertimeTimekeeping procedures
Minimum wage
Todays Session
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Overview, applicability
Recent focus on LTC providers
Results of DOL LTC reviewEnforcement
Remedies
Penalties
Risks
Focus areas
Overview and Review of the FSLA
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C
Overview and Review of the FSLA
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DOL Activity in LTC
Review Findings
Overview and Review of the FSLA
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Enforcement
Penalties
RemediesFocus areas
Overview and Review of the FSLA
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DOL and DWD Resources
Overview and Review of the FSLA
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Suffered or Permitted
On-Call Time
Meal and Rest PeriodsWaiting Time
Training Time
Travel TimeSleep Time
Hours Worked: Issues
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Wisconsin law: E/ees must be paid
for all time spent in physical or
mental exertion (whether burdensome
or not) controlled or required by the
e/er and pursued necessarily and
primarily for the benefit of the e/ers
business Wis. Admin. Code DWD272.12(1)
Suffered or Permitted
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Federal law: employ= to suffer or
permit work
Work not requested but suffered orpermitted is work time
Suffered or Permitted
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On-call time is hours worked when
Employee has to stay on the employerspremises
Employee has to stay so close to the employerspremises that the employee cannot use that timeeffectively for his or her own purposes
On-call time is not hours worked when
Employee is required to carry a pager
Employee is required to leave word at home orwith the employer where he or she can bereached
Hours Worked: On-call time
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Case-by-case determination.
Factors include:
Length of any required time limits forresponding to calls.
Geographic restrictions on employeesmovements;
Frequency of actual calls during such time;
Ability to trade on-call responsibilities, and
number of employees working on-call;Whether use of pager would easerestrictions on employee
Hours Worked: On-call time
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Factors (cont):
Whether employee actually engaged inpersonal activities while on-call
Whether agreement existed re:compensation while on-call, and whetheremployees were aware at time ofaccepting position;
Geographic location of employer; and
The effect of requiring compensation foron-call activities both to employer andemployee
Hours Worked: On-call time
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Meal periods are not hours worked
when the employee is relieved of
duties for the purpose of eating a
meal
Rest periods of short duration
(normally 5 to 20 minutes) are
counted as hours worked and must bepaid
Hours Worked: Meal and Rest
Periods
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LTC Issues: For periods to not be hours
worked, staff must be fully relieved from
responsibilities.
Regular pulling staff from meals/breaks to attendto residents may equal compensable time. Meal
periods are not hours worked when the employee
is relieved of duties for the purpose of eating a
meal
Unauthorized extension of break, contrary toclear policy, need not constitute hours
worked.
Hours Worked: Meal and Rest
Periods
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Counted as hours worked when:Employee is unable to use the timeeffectively for his or her own purposes; and
Time is controlled by the employer
Not Counted as hours worked when:Employee is completely relieved from duty;and
Time is long enough to enable the employeeto use it effectively for his or her ownpurposes
Hours Worked: Waiting Time
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Time employees spend in meetings,
lectures, or training is considered hours
worked and must be paid, unless
Attendance is outside regular working hours
Attendance is voluntary
The course, lecture, or meeting is not job
relatedThe employee does not perform any
productive work during attendance
Hours Worked: Training Time
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Training Time Issues for LTC:
In-service
NA Training
Hours Worked: Training Time
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Exempt vs. Non-exempt
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When must breaks and lunch be paid
time?
Break/Lunch Time Requirements
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Break/Lunch Time Requirements
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State and Federal Posting
requirements
Prominence
Location
What must be posted
Alternatives to posting
Posting Expectations
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Who is eligible
When must overtime be paid
Calculation of Base rate80/80 rule
Overtime Issues
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Requirements for employers
Retention of documents
Punch-inWhen are employees on the clock
Off the clock work
Timekeeping Procedures
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When must you pay an employee for
training time
Nurse aid training issues
How much c
Training and In-service Issues
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Minimum Wage Issues
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Direct Deposit requirements
Payroll Issues
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DOL has not directly addressed, but time spent usingcell, PDAs, etc, during non-business time by non-exempt personnel during non-business hours may beconsidered compensable time.
Employees must be paid for work purpose use, unless
de minimusDeducting for lost or damaged electronics:
Exempt employees: Salary deductions for lost ordamaged company property would defeat theemployees exemption b/c salary would not beguaranteed or paid free and clear DOL opinion3/10/06
Non-exempt: DOL has stated an employer may notrequire an employee to pay for an expense of e/erbusiness if doing so reduces e/ees pay below requiredmin. wage or overtime premium due.
Employee Use of Cell Phones,
email, PDAs impact on FLSA
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Summary of CBC Process
Applicant completes Background Information DisclosureForm (BID)
As applicable from BID, check other states, military
discharge, etc.If clean BID, eligible for provisional hire for up to 60 days
Submit CBC to Wisconsin Department of Justice
Review results of CBC (criminal history and DHFS search)
Check for crimes/findings thatpreclude employment
As applicable, follow-up on required information for look
back crimesEmployment decision
Resubmit four years from anniversary date
Wisconsin Caregiver Background
Check Law (WCBC)
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Non-client residents
Minors: Not required to conduct,
when minor but must conduct upon
employee turning 18
Volunteers: Not covered, unless
serving e/ee role
Temporary/pool employees
CBC Issues and Problems
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E l t Di i i ti
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Wisconsin includes arrest or
conviction records within the definition
of employment discrimination.
Minority of States
substantially related test for convictions
andpendingcharges
Arrests cannot be used as the basisfor employment decisions if they
substantially relate to the position.
Employment Discrimination
Based on Arrest or Conviction
Records
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Affirmative obligation vs. defense to
discrimination charge.
HFS 12.06 Factors
Balance of risks
The Substantially Related Test
A idi /D f di A i t
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Employment application question:
Okay to ask about convictions/arrests?
Explaining why applicant not hired:
Okay to tell them reason was conviction?
Case by case determination
Defenses
Employee lied on application
50.065 language vs. 111.335
Job substantially relates to crime
Avoiding/Defending Against
Employment Discrimination
Charge
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Wisconsin Consolidated Court
Automation Programs (CCAP)
www.wcca.wicourts.gov
Uses
Limitations
More than criminal history, e.g. traffic,
civil, family
Screening Options
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FBI Background Checks
Drug/alcohol testing
Credit/financial checksSex offender databases
http://offender.doc.state.wi.us/public/search/search.jsp
Internet/Facebook/MySpace
Other Screening Options
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Revised I-9 Forms
How has it changed?
Online version:
http://www.uscis.gov/files/form/i-9.pdf
Document Retention
Employment Eligibility
Determination
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SSA Mismatch Letter Regulations
Status
Plans for future
E-Verify
What is it?
Do I have to e-verify?
Should I?SSNVS Verification
Employment Eligibility
Determination
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Questions?
Select *2 to enter queue