WAGE & HOUR QUICKSAND: Overtime and Spaghetti-on-the-Wall
Collective Actions Presented By: Jeff Weintraub F ISHER & P
HILLIPS LLP 1715 Aaron Brenner Drive, Suite 312 Memphis, TN 38120
(901) 526-0431 [email protected]
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Wage and Hour Issues Who is Covered?
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Wage and Hour Issues Recent Developments Recordkeeping Right to
Know Rule
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Wage and Hour Issues Recent Developments Companion
Services
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Wage and Hour Issues Child Labor Regulations establish
protections for youth in nonagricultural occupations.
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Wage and Hour Issues Employees can Track Hours Worked and Pay
Due on their Smart Phones
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Wage and Hour Issues State-Specific Wage and Hour Law The
Tennessee Wage Regulations Act protects wage earners from unfair
practices regarding pay. It also protects employees from
discrimination in relation to wages.
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Wage and Hour Issues State-Specific Wage and Hour Law Tennessee
has not established a minimum wage rate. Also, TN does not have
laws governing the payment of overtime.
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Wages and Hour Issues All employers covered under the FLSA must
make and keep records reflecting employees wages and hours.
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Wage and Hour Issues Employers MUST post a notice explaining
the FLSA.
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Wage and Hour Issues The FLSA establishes minimum wage and
overtime provisions that affect nearly every employee.
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Wage and Hour Issues Calculating Overtime: Regular Rate of Pay
For all non-exempt employees, the employer must pay overtime wages
for all hours in excess of 40 hours in a workweek. For non-exempt
salaried employees, the employer must convert the employees weekly
or monthly salary into an hourly wage.
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Wage and Hour Issues Calculating Overtime: Hours Worked Hours
worked can include: Time spent donning protective gear
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Wage and Hour Issues Calculating Overtime: Hours Worked Hours
worked can include: Travel Time
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Wage and Hour Issues Calculating Overtime: Hours Worked Hours
worked can include: On-Call Time
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Wage and Hour Issues Calculating Overtime: Hours Worked Hours
worked can include: Training Time
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Wage and Hour Issues Calculating Overtime: Hours Worked Hours
worked can include: Time Spent for Medical Examinations
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Wage and Hour Issues The FLSA exempts some employees from its
overtime pay and minimum wage provisions and it also exempts
certain employees only from the overtime pay provisions.
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Wage and Hour Issues Certain Executive and Administrative
employees are exempt from overtime pay under the FLSA.
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Wage and Hour Issues For the administrative exemption to apply,
the employee must meet certain criteria: The employee must make
more than $455 per week The employees primary duty must be the
performance of office or non-manual work directly related to the
management or general business operations of the employer or the
employers customers; and The employees primary duty includes the
exercise of discretion and independent judgment with respect to
matters of significance
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Wage and Hour Issues Certain Professional Positions are also
exempt: Learned Professionals Artistic or Creative Professionals
Teachers Computer Professionals
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Wage and Hour Issues Learned Professional Primary duty must
involve work requiring advanced knowledge, defined as work that is
predominantly intellectual in character, and that includes work
requiring the consistent exercise of discretion and judgment
Advanced knowledge must be in field of service and learning
Advanced knowledge must be customarily acquired by a prolonged
course of specialized intellectual instruction Receives a salary or
guarantee of at least $455.00 per week.
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Wage and Hour Issues Artistic or Creative Professional Primary
duty is the performance of work requiring invention, imagination,
or talent in a recognized field of artistic or creative endeavor
Recognized fields include music, writing, acting, and the graphic
arts Receives a salary or guarantee of at least $455.00 per
week
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Wage and Hour Issues Teachers Primary duty is teaching,
tutoring, instructing, or lecturing in the activity of imparting
knowledge Employed and engaged in this activity as a teacher in an
educational establishment Educational establishment may include
correctional facilities, day-care centers, and church-operated
schools Receives a salary or guarantee of at least $455.00 per
week
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Wage and Hour Issues Computer Professional Employed as a
computer systems analyst, computer programmer, software engineer,
or other similarly skilled worker in the computer field, and
Primary duty is application of systems analysis techniques and
procedures, or design, development, documentation, analysis,
creation, testing, or modification of computer or designs computer
programs, and Receives a salary or guarantee of at least $455.00
per week or an hourly rate of at least $27.63 per hour.
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Wage and Hour Issues Amusement and recreational establishments
are exempt under the FLSA. Elaine L. Chao, Secretary of Labor v.
Double JJ Resort Ranch 375 F. 3d 393 (6th Cir. 2004)
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Wage and Hour Issues More Recent Developments Changes in
Classifications of Exemptions
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Wage and Hour Issues Employers usually make a few common errors
regarding employee overtime exemptions.
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Wage and Hour Issues Timekeeping & Hours Worked: The basic
obligation: to keep accurate records of all time a nonexempt
employee works each workday and each workweek
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Wage and Hour Issues FLSA Does Not Require Vacations and
holidays Lunch breaks Rest periods Premium pay - Over 8, Saturday,
and Sunday Maximum hours Sick days Discharge notice
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Wage and Hour Issues Options for Employees Reporting Time
Worked Tennessee statutes regulate when an employee must be paid.
Tennessee requires certain lunch breaks.
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Wage and Hour Issues Handling Deductions from Wages There are
seven permissible deductions from an exempt employees salary
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Wage and Hour Issues Partial Day Deductions Partial day
deductions are inconsistent with the salary-basis requirement and
should occur only for infractions of safety rules of major
significance, for leave under the FMLA, or in the first and last
weeks of employment.
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Wage and Hour Issues Inadvertent Deductions Inadvertent
deductions typically will not destroy exempt status. However,
employers can lose exempt status if they fail to reimburse
employees for inadvertent deductions.
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Wage and Hour Issues Piece Rate The regular rate of pay for an
employee paid on a piecework basis is obtained by dividing the
total weekly earnings by the total number of hours worked in that
week
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Wage and Hour Issues Piece Rate Even employees paid on a
piecework basis are entitled to an overtime premium if they work
over 40 hours in a week.
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Collective Actions The FLSA collective action procedure permits
the initial aggregation of hundreds or thousands of claims
requiring only that the employees be "similarly situated."
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Collective Actions The guts of an FLSA collective action: how
it works
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Collective Actions Why FLSA collective actions can be so
effective
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Collective Actions Collective actions can be potentially very
costly for employers.
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Collective Actions FIRST POINT: FLSA COLLECTIVE ACTIONS ARE
PREVENTABLE! SECOND POINT: FLSA COLLECTIVE ACTIONS ARE PREVENTABLE!
Heres how