The Care and Feeding gof Classified Employees

Bobby Truhe and Kelley BakerHarding & Shultzg

402/434-3000btruhe@hslegalfirm.comkbaker@hslegalfirm.com

Unionization of Classified Employees

P McCook ESP Association v. Red Willow County School District No 73-0017County School District No. 73-0017

P Delperdang v United Electrical Radio Delperdang v. United Electrical, Radio, and Machine Workers of America

Employment ContractsP Should include:

E l t t ill< Employment at will< Superintendent hires and fires< Method of termination< Compensation upon p p

termination< Authority to Authority to

withhold from wages< Compensatory Time< Compensatory Time

UnemploymentP In re Osborne, 92 Neb. App. Trib. 2388P In re Pratt, 91 Neb. App. Trib. 2139

Job Descriptions

Job DescriptionspP Required by ADAq yP Make sure they=re accurate

Y i th< You review them< Have employees review them

P Distribute to:< Current employees< Current employees < Applicants

Policies Regarding Classified Employees

P Read themF ll thP Follow them

P Change them Change themP Areas to consider:

N i< Nepotism< Evaluations< Due process (NOOOO!)

Fair Labor Standards ActWage and Hour Laws

WHAT, ME WORRY?

Who Wants More Moneyy

Traps for the Unwaryp f yP Failing to keep required recordsg p qP Treating non-exempt employees as exemptP Paying salaries in lieu of overtime Paying salaries in lieu of overtimeP Failing to count multiple jobsP Errors in computing OT or comp timeP Errors in computing OT or comp. timeP Allowing off the

l k kclock work

Exempt Employeesp p yP Executive ExecutiveP AdministrativeP Professional

Executive Employeesp yP Duties: primarily management of the p y g fagency, department, or divisionP Supervision: customarily and regularlyP Supervision: customarily and regularly directs 2 or more employeesP Compensation: at least $455/ week

Administrative EmployeesP Duties: primarily< Non manual or office work< Non-manual or office work,< Education Administration

P Discretion: customarily exercises independentexercises independent judgmentP C ti t l tP Compensation: at least $455/week

Professional EmployeesP Duties: primarily work

i i d d l irequiring advanced learning or work as a teacherP Discretion: consistent exercise of discretion or judgmentf j gP Compensation: at least $455 a weekweek

Non-Exempt EmployeesP Everyone else!< Paras< Bus drivers< Bus drivers< Custodian

S i< Secretaries< Cooks

Unless Exempt, All Employees Must:

P Keep accurate track of hours worked each day and weekworked each day and weekP Be paid at least minimum wageP Be paid overtime for all hours worked over 40 in a workweekworked over 40 in a workweek

A WorkweekP Any fixed period of 168 hoursP 7 consecutive 24-hour periodsP Employer establishes it Employer establishes itP Workweek may begin at any time

The Salary FallacyPPaying an employee a salary DOES NOT exempt the employee from minimum wage or overtime

Time RecordsP Use a time clock< Mechanical< Biometric/computer

P If you use time cards< Supervisor reviews them weekly< Supervisor signs the cards

P Don=t allow:< A8-12, 1-5" or A8 hours@

P But may sign off on regular scheduley g ff g

Failing to Pay for Dual Jobs

Cooking Bus Drivers

Dual Jobs

P Works 3 hours/day as bus driver< Paid $20 per day Paid $20 per day

P Works 6 hours/day as cook<Paid $1400 per month<Paid $1400 per month

P Total hours per week: 45 hours

Dual Jobs

P Must calculate hourly pay < Bus Driver: $20/day x 5 = $100< Cook: $1400/mo. x 12 = $16,800 ) 52 = $323

P Total pay per week: $423 P $423 ) 40 = $10.56 per hour$ $ pP 5 hours per week at $15.84P Underpaid $79 20 per weekP Underpaid $79.20 per week

Classified Staff as CoachesClassified Staff as CoachesP Best advice: be careful!P Best advice: be careful!P School Litigation GroupP U S DEPARTMENT OF LABORP U.S. DEPARTMENT OF LABOR, 1995 DOHWH LEXIS 39 (July 11, 1995)P OptionsP Options< Count all hours for coaching, preparing,

supervising studentssupervising students< Lower pay and require comp. time< Voluntary Waiver and “nominal fee”< Voluntary Waiver and nominal fee

Compensatory Timep y

Compensatory TimeCompensatory TimeP Allowed if:

1 h i h k d< 1.5 hours per overtime hour worked< Employees agree to it in advance

A h ld b i i i< Agreement should be in writingP Can=t accumulate over 240 hoursP Employer can require employees to take comp. (Christensen v. Harris County, 529 p ( y,U.S. 576 (2000)P Can pay cash for comp. time Can pay cash for comp. time

Allowing Off The Clock g ffWork

Suffers or PermitsffP Employees entitled to be paid if they work extra hours with employer=s:< Knowledge or < Acquiescence

P Reason for the work is immaterialfP Employer must make sure that work not to be performed is not performed Employer maybe performed is not performed Employer may be liable if reason to believe employee is fudging recordsfudging records

Occasional or SporadicpP Doesn=t count toward overtime if:f< Infrequent, irregular, or occurring in

scattered instancesscattered instances< Not w/in same general work category as

l kregular work< Decision to work made freely< Without coercion, implicit or explicit

Hour-Saving MeasuresgP Windshield time Windshield time

Required RecordsqP Name in fullP Home addressP Date of birth Date of birthP Sex and occupationP D fi iti f k kP Definition of workweekP Regular hourly rate of payP Hours worked each workday/workweek

Required RecordsqP Total daily or weekly straight time Total daily or weekly straight time earnings

T t l i f tiP Total premium pay for overtimeP Total additions to or deductions from fwages each pay periodP Total wages each pay periodP Total wages each pay periodP Date of payment and pay period

Enforcement & Remediesf

EnforcementP Department of Labor enforces FLSA< Secretary of Labor can bring suitB Back wagesgB Injunction

< Cannot recover attorney fees Cannot recover attorney feesP 2-year statute of limitations

3 t t t f li it ti f illf lP 3-year statute of limitations for willful violations

Criminal Enforcement< Department of Justice can criminally prosecute for willful violationviolation< 1st violation: $10,000< Subsequent violations: $10,000 and 6 months in jailmonths in jail< 5 year statute of limitations

Private EnforcementfP Employees may file suit < Back wages< Double (liquidated) damages< Double (liquidated) damages< Attorney's fees and court costs

The Care and Feeding gof Classified Employees

Bobby Truhe and Kelley BakerHarding & Shultzg

402/434-3000btruhe@hslegalfirm.comkbaker@hslegalfirm.com