Fair Labor Standards Act(FLSA)Angela Moore

Indiana State Library Intern

July 31, 2013

2

Presenter Introduction Rising 2nd year law student

Not a lawyer

Summer legal intern at ISL Former librarian at Berne Public Library

3

Disclaimer This is legal information, not legal advice

I cannot apply the law to your specific situation

4

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

5

Who is Covered by FLSA?

6

Who is Covered? Government agencies (e.g. public libraries)

have “enterprise coverage” All employees

7

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

8

Minimum Wage

9

Minimum Wage $7.25 per hour worked

Exemptions for administrative, executive, professional, & computer-related positions

Proposed legislation

10

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

11

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

12

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?

13

Overtime

14

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

15

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

16

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

17

Exemptions

18

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)

19

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

20

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

21

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)

22

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

23

Exemptions Recap Administrative Executive Professional Computer-related

Wage + nature of job

Exempt from overtime pay

24

Youth Restrictions

25

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

26

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

27

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

28

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

29

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

30

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

31

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

32

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)

33

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

34

Miscellaneous

35

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

36

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

37

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

38

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

39

QuestionsFor questions about how the FLSA applies to

your library, contact your library’s attorney.