Employers need to audit there wage and hour practices to ensure that they are not making mistakes that would cause them to violate Employment Law.
MISCLASSIFYING NON-EXEMPT EMPLOYEES AS EXEMPT FROM FSLA.
Lucrative attorneys’ fees continue to motivate lawyers to file individual and class actions on behalf of improperly classified employees. Two tests to qualify for exempt salary and duties. Meeting the duties test is a high standard. Salary threshold changes. The Department of Labor proposed significant increases to the minimum weekly salaries of exempt employees. The indications from Washington are that these changes may be adopted by the spring or summer of 2016, resulting in the doubling of some employees’ salaries in order to maintain them as exempt. Employers are advised to use this lead time to conduct a cost-benefit analysis, comparing the cost of increasing exempt employees’ salaries versus having them be non-exempt and paying for additional overtime.
INDEPENDENT CONTRACTOR OR EMPLOYEE?
State and federal agencies have stepped up enforcement and information-sharing efforts to identify misclassified workers and collect revenues. The Department of Labor recently published guidance on what distinguishes an employee from a contractor for wage-hour purposes.
FAILURE TO PROVIDE WRITTEN NOTICE TO EMPLOYEES OF THEIR WAGE RATE, PAY PERIOD, PAY DAY AND A DESCRIPTION OF FRINGE BENEFITS, INCLUDING ANY CHANGES.
It seems obvious that employers must inform their employees of their rate of pay and the way their pay will be calculated. The regulation requires more. Each employee must receive the required information in writing and must sign an acknowledgment of receipt of the information. An offer letter and a copy of the company’s employee handbook with a signed acknowledgment is sufficient at the time of hire. A written notification signed by the employee is, however, required every time the employee’s pay or benefits change, and the notice should be provided in advance of any change.
FAILURE TO PAY MINIMUM WAGE FOR ALL HOURS WORKED.
Commission employees must earn minimum wage for every hour worked and must be paid the regular rate of pay. Employee must be paid for every hour worked. There are no commission only jobs. Making deductions from paycheck that takes hourly wage below minimum.
EMPLOYING ILLEGAL ALIENS.
The Department of Homeland security has a Handbook for employers to follow to ensure employers hire people who have the right to work in the US. Employer must track documents in Section “A” for expiration dates. A common mistake is employers are not tracking. Which could mean illegal aliens.
FAILURE TO SECURE AND MAINTAIN WORKERS’ COMPENSATION COVERAGE FOR ALL WORKERS.
Misclassified Independent Contractor, An employer could find itself responsible for all medical expenses incurred by a misclassified employee injured on the job.
UNDERSTANDING REPORTING TIME RULES
Each workday an employee is required to report to work, but is not put to work or is furnished with less than half of his or her usual or scheduled day’s work, the employee must be paid for half the usual or scheduled day’s work, but in no event for less than two hours nor more than four hours, at his or her regular rate of pay.
For example, if an employee is scheduled to report to work for an eight-hour shift and only works for one hour, the employer is nonetheless obligated to pay the employee four hours of pay at his or her regular rate of pay (one for the hour worked, and three as reporting time pay). Only the one-hour actually worked, however, counts as actual hours worked. If an employee is required to report to work a second time in any one workday and is furnished less than two hours of work on the second reporting, he or she must be paid for two hours at his or her regular rate of pay.
FAILURE TO KEEP ACCURATE RECORD OF ALL HOURS WORKED.
The employer is the keeper of the record. If he cannot provide records to prove what hours the employee worked and was paid he loses. Making sure you are tracking hours, and meal periods, time off, protects the employer.
FAILURE TO PAY ALL WAGES DUE FOR HOURS WORKED.
If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately. An employer who lays off a group of employees by reason of the termination of seasonal employment in the curing, canning, or drying of any variety of perishable fruit, fish or vegetables, shall be deemed to have made immediate payment when the wages of said employees are paid within a reasonable time as necessary for computation and payment thereof; provided, however, that the reasonable time shall not exceed 72 hours, and further provided that payment shall be made by mail to any employee who so requests and designates a mailing address therefor.