In its popular HR Quiz, CCH's Human Resources Management experts highlight critical areas that can lead to costly people management missteps. An archive of past HR Quizzes appears below. We suggest that you and your staff review the situations posed in the questions, and consider whether managers and supervisors throughout your organization are prepared to handle similar situations. While intended to provide useful information on the topics covered, HR Quiz should not be construed as legal advice or a legal opinion.
Legal regulation of compensation
Disparate pay claims: Tips for minimizing employer liability [February 9, 2009]
Issue: You’ve heard about the passage of the Lilly Ledbetter Fair Pay Act, but aren’t sure what you should do in response. How can you minimize your risks in light of this law?
Answer: The Lilly Ledbetter Fair Pay Act of 2009 extends the time period in which employees can pursue disparate pay claims against their employers. Recognizing that discrimination in compensation may not be detectable until long after a pay decision is made, the law clarifies that each new discriminatory paycheck is considered a separate act of discrimination.
This broadened statute of limitations is likely to fuel an increase in litigation. To minimize the risks of liability, the law firm of Jackson Lewis advises employers to do the following:
Audit current pay documentation practices. Audit compensation practices to determine whether there is sufficient documentation supporting compensation decisions. Performance-based specifics underlying such decisions will be essential to defending a wage disparity claim.
Develop specific criteria for compensation decisions. Create objective, measurable guidelines for compensation decisions to be applied consistently and uniformly with job classification, work group, department or business unit.
Review compensation decisions. Create a process to ensure that managers and supervisors do not have unfettered discretion when making compensation decisions. Consider adopting a review system so that compensation decisions are subjected to the same rigorous scrutiny that terminations, discipline, or other adverse actions typically receive.
Revise document retention practices. Review document retention policies to determine how long documentation regarding compensation decisions is maintained. In the post-Ledbetter world, employers likely will need to retain such information for significantly longer than they may have in the past. Consider electronic archiving given the voluminous nature of pay-related records.
Train supervisors and managers. Train all supervisors and managers regarding any post-Ledbetter policy modifications to ensure that they understand those policies and, most importantly, the need to support objectively all compensation decisions.
Conduct periodic statistical analysis of compensation data. Analyze compensation data to determine if any statistical disparities exist across gender, race and ethnic lines. Once identified, make appropriate adjustments to eliminate any unexplained disparities.
Source:Legal Update: Lilly Ledbetter Fair Pay Act of 2009 Becomes Law, issued January 29, 2009; Jackson Lewis, telephone: 1-800-648-2551.
Are part-time white-collar workers exempt? [June 9, 2008]
Issue: An administrative analyst performs the duties of an exempt employee but currently works part-time for 20 hours per week. The full-time salary for this position is $500 per week. Can you prorate the salary to $250 and still claim the administrative-employee exemption under the Fair Labor Standards Act (FLSA)?
Answer: No. The FLSA’s salary standard for exemption as an executive, administrative or professional employee may not be prorated. The exemptions apply only when employees earn at least $455 weekly, regardless of the number of hours they work. Since the administrative analyst earns only $250 weekly, that person is not exempt.
There is no problem with paying the employee on a salary basis. However, the regulations make no provision for reduced pay for reduced hours. Note, however, that there is no wage violation unless the employee works for an unusually long week and the hourly rate falls below the minimum wage. Also, overtime pay would be due if the employee worked more than 40 hours during a particular week.
Source: CCH Wages & Hour Compliance Guide, W & H Opinion Letter, FLSA 2008-1NA, February 14, 2008, 05-08 CCH WH ¶31,469.
Can tip credit cover non-tipped duties? [March 17, 2008]
Issue: Airport skycaps regularly receive tips for helping customers with their luggage. They also perform tasks for which they do not receive tips, such as transporting luggage to baggage screeners, assisting disabled passengers and collecting baggage fees. May their employer take a tip credit toward payment of the minimum wage for the time they spend on these non-tipped duties?
Answer: Yes, because these tasks are incidental to their regular skycap functions for which they do receive tips. Under the Fair Labor Standards Act, a tip credit may be used for employees who customarily and regularly receive at least $30 a month in tips. The standard is customarily and regularly,
not constant.
There are times when non-tipped and tipped duties must be separated. For example, a waitperson who also performs maintenance is entitled to the full minimum wage for the maintenance hours. Similarly, food preparation that takes place before a restaurant opens may not be covered by the tip credit. However, time spent on incidental duties, such as cleaning or setting tables or operating the cash register, does not have to be segregated.
20-percent guideline. What if the non-tipped tasks take up a considerable portion of the workday? The U.S. Department of Labor’s Wage and Hour Division does have a guideline that they should not exceed 20 percent of the time. Thus, a restaurant worker who spends a lot of time performing maintenance functions may not qualify for the credit for all hours worked.
On the other hand, if the employee regularly moves between non-tipped and tipped duties, separating the time minute by minute may not be feasible and the employer likely does not have to try to separate the time. For skycaps, moving luggage at screening areas, helping disabled passengers and collecting baggage fees are regular duties of the job. Neither the employee nor the skycaps possibly could keep a detailed record of when they were performing specific duties.
Cite:Pellon v. Business Representation International, Inc., (SDFla 2007) 155 LC ¶35,375; CCH Wage & Hour Compliance Guide.
Must employers pay workers for time spent “donning and doffing” safety gear? [February 19, 2008]
Issue: At your plant, employees must put on protective gear before entering the production area to begin work. Do you need to pay them for the time spent donning
and then doffing
the protective gear?
Answer: According to a federal district court in Wisconsin, the answer is yes. The court found that a meat-processing plant had to pay its employees for the time they spent putting on and taking off items of federally and plant-required safety and sanitation equipment. Even though the collective bargaining agreement between the employer and the employees did not guarantee compensation, the employees had contended that they were entitled to it because the donning and doffing of equipment constitutes work
under the Fair Labor Standards Act (FLSA).
The company tracked its employees' hours of work using time clocks, which were located throughout the plant-typically right outside the production area.
Employees clocked in just before entering the production area and clocked out for meals and at the end of their shift.
Under federal law and company policy, employees who worked in the production area had to wear various items of personal protective equipment,
which included a hard hat or bump cap, steel-toed shoes or sanitation boots, ear plugs, hair/beard nets, safety glasses, a freezer coat (if necessary), gloves, plastic gloves, paper or cotton frock or plastic apron, sleeves and slickers. Employees had to put on some of these items in a locker room before clocking in. Then, on their way to clocking in, employees put on additional accessories (ear plugs, hairnets) that were kept in bins near the locker room. All of these items were owned by the company and stored at the plant. Although it was not stated by either party, it was presumed that the process was reversed at the end of the shift.
Although the FLSA includes many different provisions, the court said, its core requirement can be reduced to the simple and now uncontroversial proposition that employers must pay their employees a wage for all of the work
that they do. While the FLSA does not define work,
the court noted that a commonly cited Supreme Court decision determined the definition of work
to be physical or mental exertion controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.
Cite:Spoerle v. Kraft Foods Global, Inc. (WDWis 2007) 155 LC ¶35,382.
Can year-end bonuses affect overtime pay? [December 17, 2007]
Issue: Success Company has a long tradition of paying workers a year-end bonus equivalent to two weeks’ or four weeks’ straight-time pay. The Board of Directors votes on the distribution annually but has always given its approval. Employees count on the bonus, and management talks up this perk
to job applicants. Must the amount of the bonus be included in overtime-pay calculations?
Answer: No, the bonus probably does not have to be included under these circumstances, but specific facts are crucial. Regular-rate calculations may exclude payments that are in the nature of a gift as a reward for service at Christmas or on other special occasions. A Christmas or year-end bonus may be based on a regular salary or pay for a standard workweek but cannot be measured by hours worked, production or efficiency. Furthermore, it may not be so substantial that the employees consider it a part of wages and it cannot be paid pursuant to a contractual obligation.
Holiday payments of $20, $50 or $100 are not substantial. Even two weeks’ pay is not so substantial as to disqualify the bonus from exclusion. Likewise, four weeks’ pay for more senior employees is permissible, the Wage and Hour Division says. Payments may vary in size based on salary, length of service or employee grouping, so long as the amounts are not based directly on hours, production or efficiency.
Is there a contract to pay? The fact that bonuses have been paid regularly for a long time, even pursuant to a set formula, does not convert them into regular compensation. This is true, even if employees have come to expect the payment. However, employees’ expectations cannot rise to the level of a contract obligation, either express or implied. Then, the payment is no longer in the nature of a gift.
For example, incorporating the payments into individual agreements or union contracts could require their inclusion in overtime-pay computations. Similarly, oral promises to employees or job applicants could be construed, at least in some circumstances, as creating an implied obligation to pay the bonus in return for accepting or continuing employment. Bonus amounts should not be included in annual salary figures.
The Wage and Hour Division advised one employer that a customary annual bonus probably had to be included. Most significantly, the bonus amount was based, in part, on job performance. However, the Division also suggested that a longstanding practice of payment, coupled with monthly allocations to the bonus pool and promises to new hires, likely created an implied understanding that workers would be paid (Wage & Hour Opinion Letter, November 5, 1999, 99-02 CCH WH ¶32,994).
Employees and applicants can be told that bonuses have been paid in the past-even that management hopes to be able to continue the practice. However, this dangerously invites managers and human resources personnel to overstate the certainty of payment. Management should caution that the payments are discretionary and subject to annual approval.
If a holiday or year-end bonus does not qualify for exclusion from overtime pay, then management must go back and recalculate any overtime compensation paid in earlier weeks.
Source:CCH Wage Hour Compliance Guide.
Is time spent going through security checks compensable? [August 20, 2007]
Issue: The events of 9/11 have led to heightened security at many workplaces. At energy plants, airports and some government buildings, checks may include not only requests for ID but also scanners, pat-downs and even vehicle searches. Must employees be paid for time they spend at work entrances passing through detailed security procedures?
Answer: The time is not compensable, at least under normal circumstances. Arguably, delays at a security checkpoint are analogous to time spent donning required protective clothing or collecting equipment. Such time generally is compensable because it is a principal job activity that starts the workday. However, a pair of recent cases held that increased security does not increase wage liability, even when the process takes several minutes.
In one case, workers at a nuclear power plant sought pay for time they spent waiting in traffic outside the plant entrance, a badge inspection and visual check of car contents, parking and walking to a command post, waiting to go through various detectors, and then waiting again to swipe their ID badge. In the other case, construction workers worked for a subcontractor at an airport terminal project. They could walk or take a van from parking areas to a checkpoint. There, they had to show their badges, as well as their hard hats, goggles, boots and other equipment, which they had to take on a bus to the actual jobsite.
Clearly, the time spent waiting, traveling and passing through security was an indispensable part of the job. Employees had to go through the procedure in order to work. However, a principal activity that starts the pay clock must be both integral and indispensable
to the job.
For the workers at the nuclear power plant, the court stressed that the security check was not an integral part of the work the employees performed. This time was more akin to travel time, which generally is not compensable, than it was to donning gear required to do a job safely. Also, security checks were required for other visitors, not just employees. In the airport situation, the court decided that security was not an integral part of the job because it was required by the government and was not primarily for the benefit of employing contractors.
Cite:Gorman v. The Consolidated Edison Corp. (2dCir 2007) 154 LC ¶35,296; Bonilla v. Baker Construction, Inc. (11thCir 2007) 154 LC ¶35,297; CCH Wage & Hour Compliance Guide ¶847.
Conducting an equal pay audit [July 23, 2007]
Issue: The U.S. Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co, Inc. (SCt 2007) 89 EPD ¶42,827, and a move in Congress to reverse the effects of that decision have renewed interest in wage discrimination issues. How can an employer analyze its wage-setting policies for pay equality?
Congress succeeded in reversing the effects of the Ledbetter decision in January 2009 with the passage of the Lilly Ledbetter Fair Pay Act of 2009. The law amends Title VII and the Age Discrimination in Employment Act of 1967, and modified the operation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, to clarify that a discriminatory compensation decision or other practice occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice.
Answer: The Department of Labor’s Women’s Bureau has developed a 10-step equal pay self-audit for employers. This simple evaluation can help employers who want to do the right thing; the answers to these questions may be informative and useful to begin work on implementing some of these policies.
Conduct Recruitment Self-Audit
Evaluate Your Compensation System for Internal Equity
Do you have a method to determine salaries and benefits?
Do you write position descriptions, seek employee input and develop consensus for position descriptions?
In unionized workplaces, do you involve union leaders?
Do you have a consistent job evaluation system?
Are jobs scored or assigned grades?
Are positions where women and minorities work scored or graded according to the same standards as jobs where men or non-minorities work?
Could a method be used for ensuring consistent pay for people with substantially similar levels of experience and education who hold jobs calling for substantially similar degrees of skill, effort, responsibility and working conditions, even though job titles may be different?
Evaluate Your Compensation System for Industry Competitiveness
Do you have a method to determine the market rate for any given job?
Do you ensure that market rates are applied consistently (i.e., Can you be confident that men are not being compensated at or above market rates while women are compensated at or below market rates? Can you be confident that non-minority workers are not compensated at or above market rates while minority workers’ compensation is at or below the market rates?)
Would your company benefit from a fresh approach that updates position descriptions; assesses skill, effort, responsibility, and working conditions of various jobs; assigns grades or scores; and ensures consistent application of market rates and external competitiveness?
Conduct a New Job Evaluation System If Needed
Do you have up-to-date position descriptions for all occupations?
Do you establish criteria for assigning values to skill, effort, responsibility, and working conditions for a job?
Do you challenge basic assumptions about the value of skills before assigning points or grades (i.e., Do you consider how caring for sick people, small muscle dexterity in typing, and other skills may have been undervalued in jobs that have been traditionally held by women?)
Do you ensure agreement among worker representatives and management on criteria to evaluate jobs?
Do you assign scores or grades to jobs and allow worker input?
Do you compare your system with market rates and other external competitiveness factors?
Do you consider whether the market has undercompensated certain occupations or professions before making adjustments?
Do you assign consistent compensation to jobs within similar grades or scores, and do you use market rates and other external competitiveness factors consistently?
Examine Your Compensation System and Compare Job Grades/Scores
How does pay compare for positions with similar grades or scores within your company?
On average, are women and minorities paid similarly to men and non-minorities within the same grade or job score?
Are there legitimate reasons for any disparities in pay between jobs with similar grades or scores?
Can corrections be made to ensure consistency in assigning grades or scores?
How long do men, women and minorities stay within job grades or scores before moving up?
Do men or non-minority workers move up faster?
What are the reasons that some workers move up faster?
Can you take action to ensure that all workers have equal opportunity for advancement?
Review Data for Personnel Entering Your Company
At what grades or positions do men, women and minorities typically enter your company?
Within those grades and positions, are salaries consistent, or do men, women and minorities enter at different pay levels?
How does negotiation affect entry-level salaries? Are men able to negotiate higher starting salaries than women or minorities?
How do new hires compare in salary to those already working in the company in the same grades or positions?
Do men, women and minorities entering the company get paid higher or lower than those who already hold the same positions or grades?
Are there differences by gender or race?
Are changes needed to ensure that new hires are treated consistently and incorporated into existing compensation systems on a compatible basis?
Assess Opportunity for Employees to Win Commissions and Bonuses
Are men, women and minorities assigned projects or clients with high commission potential on a consistent basis?
Are men, women and minorities with similar levels of performance awarded bonuses on a consistent basis? Do they receive bonuses of similar monetary values?
Assess How Raises are Awarded
Is there a consistent method of evaluating performance for all workers?
Do men, women and minorities receive consistent raises based on similar performance standards? (i.e., Are all workers with outstanding evaluations awarded the same percentage increases? If not, what are the reasons for the difference?)
Are men, women and minorities with similar levels of performance awarded bonuses on a consistent basis? Do they receive bonuses of similar monetary values?
Evaluate Employee Training, Development and Promotion Opportunities
How are workers selected for participation in training opportunities or special projects that lead to advancement?
Are there differences by race or gender?
If so, what can be done to widen the pool to reflect equal opportunity?
Implement Changes Where Needed, Maintain Equity and Share Your Success
Have you made changes to ensure consistency in evaluation of jobs, assignment of grades or scores, advancement within the system, performance evaluation, compensation levels, raises, bonuses, commissions and training?
Have your evaluated your compensation system periodically to ensure that it meets equal employment opportunity goals?
Do you maintain openness about compensation with your work force?
Do you regularly post job openings and salary ranges within the workplace?
Do you allow employees to discuss compensation issues on their own time?
Are you reaping the rewards of a productive, loyal work force, and using your success as a competitive tool to attract the best and brightest workers?
Source: U.S. Department of Labor, Women’s Bureau, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210; http://www.dol.gov/wb/ .
New federal minimum wage: How does it interact with state law? [June 4, 2007]
Issue: Your company currently has operations in six different states. You know a new federal minimum wage is scheduled to take effect soon, but are confused about how it interacts with the minimum wages required under state law. Which rate must you pay-the new federal rate or the state rates?
Answer: On May 25, 2007, President Bush signed the Fair Minimum Wage Act of 2007, which raises the federal rate in three steps: from $5.15 to $5.85 per hour on July 24, 2007, to $6.55 per hour on July 24, 2008, and to $7.25 per hour on July 24, 2009. Employers of employees who are subject to both state and federal minimum hourly wage rates will have to comply by paying the employee the greater of the two rates.
Alabama, Louisiana, Mississippi, South Carolina and Tennessee do not have state laws specifying minimum wage rates, thus the federal minimum wage rate applies in these states.
In Georgia, Kansas, Nebraska, New Hampshire, New Mexico, Utah and Wyoming, the state minimum wage rates are lower than the revised federal rate. Employers in these states will need to pay the new federal rate beginning July 24, 2007.
In Idaho, Indiana, North Dakota, Oklahoma, South Dakota, Texas and Virginia, the state rates are tied to the federal rate and will therefore increase to $5.85 per hour on July 24, 2007.
The remaining states have minimum wage rates that, on July 24, 2007, will exceed (or equal) the new federal rate. Employers in these states must continue to pay the state rate: Alaska ($7.15); Arizona ($6.75); Arkansas ($6.25); California ($7.50); Colorado ($6.85); Connecticut ($7.65); Delaware ($6.65); District of Columbia ($7.00); Florida ($6.67); Hawaii ($7.25); Illinois ($7.50); Iowa ($6.20); Kentucky ($5.85); Maine ($6.75); Maryland ($6.15); Massachusetts ($7.50); Michigan ($7.15); Minnesota ($6.15 for large employers); Missouri ($6.50); Montana ($6.15 for large employers); Nevada ($6.33 without health benefits); New Jersey ($7.15); New York ($7.15); North Carolina ($6.15); Ohio ($6.85); Oregon ($7.80); Pennsylvania ($7.15; $6.65 for small employers); Rhode Island ($7.40); Vermont ($7.53); Washington ($7.93); West Virginia ($6.55); and Wisconsin ($6.50).
“Fluctuating hours” pay plan can reduce overtime liability [May 29, 2007]
Issue: Your company’s production contracts dictate considerable variation in the number of hours employees work each week. You’ve have heard about a fluctuating hours
pay plan that actually may reduce overtime rates for long hours. How does it work?
Answer: Under a fluctuating hours
plan, the regular rate used to calculate overtime premiums goes down as an employee’s weekly hours increase. Moreover, employers need only add an additional half time to what workers’ regular pay, not time and one half.
Basic to this plan is that employees receive a fixed straight-time wage, in essence a salary, regardless of the number of hours they work. In addition to this fixed wage, they must receive an additional half-time premium for hours worked beyond 40 in a workweek. The reason it is half time, and not time and one half, is because the straight-time portion of the wage already is included.
As hours climb, rate declines. In addition, the regular rate used to calculate the half-time premium is based on all hours worked during a week, not just the first 40. Divide the fixed wage by the total number of hours. If the fixed weekly wage is $500 and an employee works 45 hours, the regular rate is $11.12. If the employee works 50 hours, the regular rate is only $10. The longer the employee works, the lower the hourly premium rate becomes.
The regular rate cannot dip below the minimum wage, however. An employer must bring the rate up to the minimum and base the overtime premium on that level. Be aware that, not only may the federal minimum wage go up, but many states already mandate a higher standard.
Know rules and trade-offs. As is the case for hourly employees or under other pay plans, the pay period can be longer than a week. However, the employer and the employees must have a mutual understanding in advance that regular pay will not vary with the number of hours. It is best to put this understanding in writing to avoid later disputes. Employers also should make sure employees understand the plan, including how overtime is calculated.
There are a couple of trade-offs for using this type of plan. First, employees must be paid their full salary, even if their workweek is reduced because of lack of work. Second, employers cannot exclude paid leave from the regular-rate calculations as they can under normal computation methods. Employers can deduct for willful absences or tardiness, but only after the regular rate has been determined.
Source: CCH Wage & Hour Compliance Guide
Work performed while building a future together not covered by FLSA [February 5, 2007]
Issue: Tammy and her domestic partner worked side-by-side in a dog grooming business for four years and lived off of the business’s proceeds. Each of them performed the same duties and each was free to incur substantial personal expenses, which were paid by the business. Tammy received health insurance through the business as well as sporadic paychecks to substantiate the company’s claim that she was on its payroll for insurance eligibility purposes. Tammy also received one or two commission checks, but they were not commonplace. Tammy and her partner anticipated spending their lives together, but when the romantic relationship ended, the professional relationship collapsed as well. Can Tammy recover damages under the Fair Labor Standards Act for the work that she performed?
Answer: No. The Fair Labor Standards Act covers only “employees.” According to the Fourth Circuit, the arrangement described above did not make Tammy an employee. The couple saw their work together as a way to improve an economic future that they intended to share in perpetuity, rather than a transfer of one individual’s assets to another in exchange for labor.
Tammy did not receive a bargained-for portion of her supposed employer’s assets-she took from those assets for her own purposes with a discretion that is fundamentally alien to employer-employee relationships. Because Tammy lived comfortably and exclusively off of the proceeds of the business and exerted authority in disposing of its funds, the court could not find the bargain of exchanging labor for compensation that marks employment arrangements.
The court noted that Tammy may well have a basis for recovery in state law, but that the FLSA could not be transformed into a blunt instrument to resolve all financial disputes.
Cite:Steelman v. Hirsch dba Hair of the Dog, (4thCir 2007) Dkt. No. 06-1007.
Do deductions from commissions affect exempt status? [December 26, 2006]
Issue: A store’s assistant manager receives a salary plus commissions based on the sale of big-ticket items. However, the employer takes deductions from commissions for cash-register shortages. Do these deductions affect the assistant manager’s status as an exempt executive employee?
Answer: No, assuming that the employee continues to receive a salary of at least $455 per week and performs the duties required for exempt status. An exempt employee may receive commissions or other compensation in addition to a guaranteed salary. The amount of that additional compensation is a matter for agreement between the employer and the employee.
An executive, administrative or professional employee must receive a guaranteed salary equivalent to at least $455 weekly to be exempt from overtime compensation requirements. The salary established for any given pay period may not be reduced because of cash-register shortages or other deficiencies in job performance. The only exceptions are deductions for violating safety rules of major significance or full-day suspensions for workplace misconduct of a serious nature.
The prohibition against deductions does not extend to commissions, bonuses, extra hourly pay, paid time off or other compensation paid in addition to salary. Deductions from commissions are valid, provided the commissions are not paid merely to enable otherwise prohibited deductions from the salary portion of compensation. For example, one court held that an agreement to reimburse losses was invalid because it allowed money to be withheld from salary as well as other forms of compensation.
Source:Wage & Hour Opinion Letter No. 2516 (FLSA2006-24), July 6, 2006, 05-08 CCH WH ¶31,406.
Do store managers need to be onsite to manage? [November 20, 2006]
Issue: Your company typically staffs its retail stores with a store manager and one other employee at all times. The store manager is responsible for, and has supervisory authority over, all of the store’s employees (often five to eight individuals). The employees together work in excess of 80 hours per week. Because of the store’s size and staffing levels, however, the store manager physically or in person supervises less than 80 employee hours per week. Do the managers qualify for the executive exemption under Section 13(a)(1) of the Fair Labor Standards Act, which requires that an employee must customarily and regularly direct the work of two or more other employees?
Answer: Yes. A store manager doesn’t need to be physically present at the store in order to manage its workers, according to a recent opinion letter issued by the Department of Labor. As long as the manager customarily and regularly directs the employees' work, his actual presence is not necessary for him to be deemed an executive employee under the FLSA, and thus exempt from overtime. Assuming all other Section 13(a)(1) exemption requirements are met, an absentee manager that continues to be responsible for the employees' work and other personnel issues is exempt.
Directing the work. Ways in which a store manager might customarily and regularly direct the work of subordinate employees, even when the manager is not present on the premises, include:
Remaining responsible for ensuring that company policies and the manager’s instructions are carried out by all subordinates by following up on assigned tasks on a daily basis and monitoring employee productivity and sales goals;
Planning employee work loads;
Setting and adjusting employees’ hours of work;
Appraising employee productivity and efficiency;
Handling employee complaints and grievances;
Disciplining employees;
Remaining on call and taking responsibility for emergencies such as a sudden store closing; and
Routinely calling or stopping by a store when not on duty until confident that the assistant manager can effectively handle situations in the store manager's absence.
Source:Wage & Hour Opinion Letter No. 2531 (FLSA2006-35), September 21, 2006, 05-08 CCH WH ¶31,421.
Do incentive bonuses affect overtime-pay rate? [September 18, 2006]
Issue: Your organization is modifying its incentive compensation approach and is looking at a couple of bonus programs. One question that has been asked is what impact, if any, these anticipated bonus plans could have on your overtime pay liability.
Everyone but recent hires receives a bonus if the company exceeds base-line financial goals for the previous calendar year. Bonuses and eligibility criteria are announced in advance, and amounts are based on the ratio of individual earnings to total employee earnings.
A Team Bonus Plan
promises bonuses to sales personnel based on the amounts by which they exceed monthly sales targets. Eligibility criteria are set at the start of the year. However, management reserves the right to withhold bonuses in extraordinary circumstances
and once did so due to serious employee misconduct.
Must these bonuses be factored into regular-rate calculations when computing overtime pay?
Answer: Yes. Both bonus plans call for incentive payments that must be included as a part of the regular rate for overtime-pay purposes. These incentive payments are nondiscretionary in nature both as to the fact of payment and the amount. In effect, each plan promises the bonuses in advance based on communicated eligibility criteria and established calculation methods.
Unlike promised incentive bonuses, discretionary bonuses may be excluded from the regular rate. The employee has no contractual right to the bonus. However, the employer must retain discretion both as to whether the bonus is paid and how much it will pay, at least until a time quite close to the end of the period for which the bonus is paid. When the employer promises the bonus, it surrenders discretion regarding the fact of payment.
In situation #2 above, the extraordinary circumstances
part of the plan does not vest the employer with sufficient discretion to justify excluding the bonus from the regular rate. The discretion must exist, not only in theory, but also in practice. A rare withholding due to serious misconduct does not really alter the nondiscretionary nature of the plan. The bonus is paid so regularly and consistently that there is an understanding on the part of the employees that they will receive it.
Source:W & H Opinion Letters, FLSA2006-5NA and -9NA, April 27 and May 11, 2006, CCH Wages Hours Reporter
, 05-08 CCH WH ¶31,385 and ¶31,391.
May hours and “make-up time” rules be imposed on exempt employees? [June 26, 2006]
Issue: Your company expects exempt executive, administrative and professional employees to put in at least 45 hours a week and to make up partial days of personal absence. May employees be penalized for failing to meet these requirements without affecting their exempt status?
Answer: Yes, provided the employees are not docked pay for failing to work the minimum number of hours or to make up the lost time. Although loss of pay is not permissible, the employer may keep track of employees’ transgressions, consider them in performance evaluations, and impose discipline, up to and including discharge.
Docking pay would violate the salary-basis requirement for exempt status. Because of this, one form of discipline that is not permissible is a temporary suspension without pay. Regulations do allow suspensions for violations of workplace conduct rules.
However, this exception does not cover performance or attendance issues.
Exempt employees must be paid their full salary for any week in which they perform some work, regardless of the total number of hours. They do not have to be paid if they miss an entire week. They also may be docked for a full day of absence because of personal reasons, but not for only part of a day.
Source:Wage & Hour Compliance Guide by Philip D. Dickinson, W & H Opinion Letter, FLSA 2006-6, March 10, 2006, 05-08 CCH WH ¶31,373.
Do you need to compensate your employees for time spent volunteering on employer-sponsored activities? [March 13, 2006]
Issue: Your company has a pay plan that includes results pay awards
or bonuses that are based on a work group’s performance. The work group’s performance bonus is calculated using a rewards matrix. This matrix awards varying amounts of points based on several categories of activities and performance standards. One of these categories, Community Participation via Volunteer Efforts,
accounts for approximately 10 percent of the total points the group can achieve under the plan. The rewards matrices are designed so that an employee group can reach the highest award level without performing any volunteer activities.
The manager of one of your work groups e-mails members of the group encouraging them to participate in a Habitat for Humanity project sponsored by your company. He advises the group members as to how many volunteers are needed to complete the house on schedule. Later, the manager sends a second e-mail to the group informing them that, without a full crew, the work day may be longer or put the project behind schedule. A full crew for the event is assembled.
No employees are compensated for the time spent working, which was not on a normal work day. The project was added, however, to the work group’s performance under the reward matrix. Do you need to treat the hours the employees spent working on the project as compensable working time?
Answer: No. Time spent in work for public or charitable purposes at the employer’s request, or under the employer’s direction or control, or while the employee is required to be on the premises, is working time. However, time spent voluntarily in such activities outside of the employee’s normal working hours is not considered hours worked under the Fair Labor Standards Act.
Employers may encourage their employees to volunteer their services for public or charitable purposes outside of normal working hours without incurring an obligation to treat that time as hours worked, so long as participation is optional and non-participation will not adversely affect working conditions or employment prospects.
In the scenario described above, when the employees volunteer for Habitat for Humanity outside their normal working hours, the employer neither controls nor requires the volunteer work nor receives any benefit from it. The employer is merely trying to encourage employees to donate their time to others and is not obligated to treat the volunteer hours as compensable time worked under the FLSA.
Consideration of volunteer service in the determination of a group bonus does not change this result, as long as employees are not denied any part of the bonus because they did not participate in the volunteer activity. Nor can they be led to believe that their work conditions or employment prospects would be affected by nonparticipation, such as would occur if the group could not qualify for the full bonus without performing volunteer work.
In the employer’s performance pay plan, volunteer work accounts for only 10 percent of the total points available. The employees in this situation would have no expectation of compensation for their volunteer work because, among other things, they would have no way to know whether the group ultimately will meet its rewards goal for the year or whether the group will achieve the maximum award even without any employee’s volunteer service.
Source: Wage Hour Opinion Letter No 2482 (FLSA 2006-4), January 27, 2006.
Attending mandated therapy may be compensable work time [February 27, 2006]
Issue: One of our employees, an emergency dispatcher, was mandated to attend therapy because she left work early one day due to stress. Do we have to compensate her for the time she spends in therapy and traveling to and from therapy?
Answer: Maybe. A federal court decision has found that attending mandated therapy was compensable time. (It’s important to note that the court also pointed out that its finding in this case was very fact-specific.) The case involved an emergency dispatcher who left work abruptly one day under stress. Her employer mandated weekly psychotherapy as a condition of her continued employment. In response, the employee filed a wage suit alleging that she should have been paid for the time she spent in the one-hour sessions as well as the two hours of travel time to and from the sessions, which took place outside her standard work hours.
According to the court, the time spent attending and traveling to and from therapy sessions was compensable because the sessions were necessary and primarily for the employer's benefit.
The court rejected the employer's claim that medical treatment always primarily benefits the employee. Rather, the court concluded the therapy sessions were to help ensure the employee properly responded to emergency calls and stayed on the job in a position that was short-staffed.
Of significance were the facts that:
the therapy was a mandatory condition of employment;
the employer was short of dispatcher staff;
the employer covered 90 percent of the costs of therapy; and
the employee could not see her own therapist, rather, the employer insisted she see its approved provider.
We find it odd that [the employer] would not let [the employee] see her own therapist if [it] believed that these counseling sessions were for her benefit,
the appeals court noted.
Source:Sehie v City of Aurora, 7thCir, 432 F.3d 749.
How does Saturday lump sum pay affect overtime pay? [December 27, 2005]
Issue: Insurance appraisers sometimes put in a few hours on Saturday, perhaps logging on to computers at home or meeting with clients who are unavailable during the week. Anyone who works on Saturday receives an extra $100. The amount does not vary based on actual hours. How does this money affect overtime-pay calculations?
Answer: The employer cannot count the lump-sum payment toward its overtime obligations. Moreover, the payment will increase the amount of overtime compensation due to the employees.
Premiums paid for weekend or holiday work may be counted toward FLSA overtime compensation only when they are based on the number of extra hours worked. Payments made without regard to hours cannot be used to offset statutory obligations. In addition, the payments must be included in employees’ regular rate of pay when the employer calculates overtime compensation that is due.
The lump-sum payment also means that the employer cannot use the fluctuating workweek
method for overtime-pay calculations. Under this method, the parties agree on a fixed salary regardless of the number of hours, and the employer will owe only an additional half-time for hours worked in excess of 40 during the workweek. There is no fixed salary because of the extra payments for Saturday work.
In effect, the lump-sum payment is an incentive or production bonus rather than an overtime premium. Bonuses that do not relate to hours worked may not be credited against overtime-pay liability. Lump-sum payments may be useful tools in some situations, but employers should be aware of potential consequences.
Source: Author Phillip D. Dickinson, J.D., referencing Dooley v Liberty Mut Ins Co, Dkt No 01-11029-REK (DMass 2005), in the CCH Wage Hour Compliance Guide ¶1257.
Employees’ time between putting on protective gear and removing it is compensable [November 28, 2005]
Issue: Your company’s manufacturing plants employ thousands of production workers who must wear protective gear for safety reasons. You have been storing this protective clothing in company locker rooms, and after employees suit up, they walk to the production floor, punch in, and begin work. At the end of their work shift, employees punch out, then proceed to the locker room and take off their protective gear. You believe your organization is appropriately compensating employees for their workday. Is it?
Answer: No. The time that employees spend walking to their production area after putting on required work gear must be compensated under the Fair Labor Standards Act, the U.S. Supreme Court has ruled. The time spent waiting to take off protective work gear is also compensable under the Act. However, the time spent waiting to put on the first piece of gear prior to the start of the workday is not compensable under the FLSA.
What’s the difference? The pre-dressing wait time is not part of the continuous workday. During a continuous workday, any walking time that occurs after the beginning of the employee's first principal activity and before the end of the employee's last principal activity is . . . covered by the FLSA,
Justice Stevens wrote for a unanimous Court. The employees' first principal activity is putting on their work gear; their last, taking off that same work gear. In reaching its decision, the Court applied the continuous workday
rule, a Labor Department regulation which defines the workday
as the period between the commencement and completion on the same workday of an employee's principal activity or activities.
The Court also advanced another key principle: Any activity that is integral and indispensable
to a principal activity
is itself a principal activity.
The Court rejected the employer's urging that it essentially adopt a category of activities (and count walking time within this category) that were concededly integral and indispensable,
but not principal activities
and thus not compensable.
Taken together, then, putting on and taking off required work gear are integral and indispensable,
and thus principal
activities. And, as the first and last principal activities of the day, the time between them is part of the continuous workday, and as such is compensable (notwithstanding certain unpaid break periods). This includes the time walking to and from the locker room and production sites, as well as the time workers had to wait to remove their work gear before taking it off. However, applying the continuous workday rule to the facts in this case, the time spent waiting to dress before putting on work gear would qualify as a preliminary activity
because it occurs prior to the start of the workday; thus, it would not be compensable time.
Source:IBP, Inc v Alvarez, SupCt, 151 LC ¶35,056, November 8, 2005.
Can exempt employees’ PTO accounts be reduced for partial-day absences? [May 31, 2005]
Issue: Your company has a Paid-Time-Off (PTO) plan that provides workers with a set number of days for absences due to vacation, illness, disability or personal reasons. The plan applies both to rank-and-file workers and to executive, administrative and professional employees who are classified as exempt for overtime-pay purposes. As the employer, may you make deductions of less than a full day for absences of exempt personnel?
Answer: Yes, provided that your company has a valid and fairly administered leave plan. The issue is whether a deduction from PTO leave for a partial day of absence violates the requirement that exempt executive, administrative and professional workers receive a salary. The Wage and Hour Division says that it does not. The key is whether or not the exempt employees receive their guaranteed salaries, despite the absences. It is permissible to deduct half a day from the leave bank, so long as no deduction is made from actual pay.
Negative PTO balances. Deductions from pay in partial-day amounts may not be made for exempt personnel who have negative balances in their PTO accounts. In the situation of a negative balance, pay may be reduced only in full-day amounts; for example, one or two days, not a half a day or a day and a half. Moreover, the deduction in pay must be pursuant to a valid leave plan that covers sickness and disability.
A valid plan is one that defines the benefits, has been communicated to eligible employees, operates as it is described and is administered in an impartial manner. The plan does not have to be limited to sickness and disability.
There is a minority view that employers should be able to reduce PTO accounts of exempt personnel for partial days of absence when employees are allowed to cash out their accounts when they leave or when an employer discourages a negative balance. A couple of courts have so held, although the Division does not share that view.
Cite: W & H Opinion Letter, 02-04 CCH WH ¶31,118, January 7, 2005.
Paying wages
How can you enhance participation in your company’s direct deposit program? [June 18, 2007]
Issue: Your company regards payroll direct deposit as a valuable, cost-effective employee benefit, yet many employees, including management-level employees, don’t participate in your company’s direct deposit program. How can you encourage non-participating employees to sign up?
Answer: Getting straggler
employees to enroll in an up-and-running program can be a challenging task. Dee Nelson, payroll manager at Alutiiq LLC, and Larry White, director of payroll training with the American Payroll Association, offer the following tips and tricks to encourage employees to sign up.
Provide enrollment forms. Start by simply putting an enrollment form in the employee’s paycheck. This is the number one way to enhance participation in direct deposit programs, according to Nelson.
Educate employees. Ask employees, especially non-participating management employees, why they are not using direct deposit and then educate them about the program benefits, including:
free and/or reduced-fee banking services;
elimination of a trip to the bank;
automatic deposit of funds when the employee is away from home;
elimination of holds
on out-of-state checks;
elimination of lost or stolen checks;
minimization of delays due to delivery services outside of company control; and
flexibility to deposit into multiple accounts.
Educating employees does not have to be difficult. For example, simply putting notes in employees’ paychecks informing them that the money would already have been in the bank if they had used direct deposit is an easy way to drive home your point. Similarly, you could conduct an analysis of where employees are cashing their checks and show them how much they could save by not paying fees to a check-cashing business. You may also want to consider inviting a bank to conduct money management classes, including a session on the advantages of direct deposit.
Promote the program. Employers can promote their direct deposit program by inviting a variety of banks into the workplace to conduct promotions, such as free checking. This can be done frequently to encourage worker sign-ups with direct deposits. Consider giveaways and prizes. Small things, like movie tickets and restaurant gift certificates, can encourage employee participation. The important thing is to get employees involved and fired-up.
Other promotion ideas include:
A carnival-type game, where employees who enroll in the program get a chance to spin a wheel to win a prize.
A contest where all the employees at the company location or department with the biggest percentage increase in direct deposit participation win a prize.
Perks for employees who already participate in the direct deposit program so that non-participating employees will see the advantage
of enrolling.
Taking key
people to lunch. Peer pressure exists at work and if key people spread the word about the benefits of direct deposit, or others see that they are using it, then they may follow suit. Especially consider management personnel-it can be tough to convince employees to join direct deposit if their boss doesn't utilize the program.
Get tough. Sometimes getting tough is the best approach when trying to reach 100-percent participation in a direct deposit program. If state law allows you to mandate direct deposit, then do so-don't give employees the option of receiving a paycheck. Other measures to consider include:
passing on bank fees to employees when they lose their paychecks;
establishing a three-day rule to make an employee wait to get a reissued check; and
mailing checks to employees’ homes instead of handing them out at work.
Finally, consider making the direct deposit enrollment form a required return
form. Whether or not the employee opts to join the program, he or she should be required to return the enrollment form. And, when talking with new hires, be sure to sell
direct deposit as a company benefit and encourage them to start with the program from the beginning of their employment.
Source: Dee Nelson and Larry White, speaking at the 25th Annual American Payroll Association Congress in Las Vegas, NV; CCH Payroll Management Guide Newsletter, June 5, 2007.
When must departing workers be paid? [March 5, 2007]
Issue: Your receptionist, Susan, has just resigned and is demanding final payment. How soon must you pay her wages due?
Answer: Payment of wages to departing workers is generally covered by state law. The laws of most states require prompt payment of accrued wages following termination of employment. However, the rules vary from state to state, and different standards may apply depending upon whether the termination is voluntary or involuntary.
Typically, employers can pay resigning workers on the next regular payday. The same is true for employees who walk out in a labor dispute. Some states instruct employers to issue final paychecks within a specific number of days or hours, which may expire before the next regular payday. For example, California employees who leave voluntarily must be paid within 72 hours.
Tighter schedules may apply to involuntary separations. California requires immediate payment upon a discharge for cause. Minnesota is another state with this rule.
Failure to follow the designated time constraints may lead to additional wage liability or civil penalties. One type of provision extends wage liability until the time of late payment. Double payment also may be required.
Tardy payment may also violate federal and state laws covering minimum wages and overtime pay. The federal Fair Labor Standards Act requires prompt payment-usually no later than the next regular pay period.
Employers should have a policy and procedures in place for issuance of paychecks in termination situations. Check that policy against state law and ensure that supervisors who have firing authority do their paperwork in timely fashion.
May a company switch from biweekly to monthly paychecks? [May 8, 2006]
Issue: Your service company is experiencing difficult economic times. Staff has been reduced and, because of cash flow problems, the company would like to switch from biweekly to monthly paychecks. A couple of employees who receive an hourly wage often work overtime because of the short staff issue. Is the switch to longer pay periods legal?
Answer: There is no problem under the federal Fair Labor Standards Act, but state laws often regulate how often employees must be paid. In many states, nonexempt personnel generally must be paid no less frequently than biweekly or semimonthly. The company can not switch to monthly pay in those states unless an exception is authorized.
For most employees, the FLSA requires calculation of overtime on a weekly basis. However, it does not require that overtime be paid weekly. The general rule is that overtime for a particular workweek must be paid on the regular payday for that period. Paydays may cover periods longer than a week, whether two weeks, half a month or a whole month.
In the states, the most common legal standard for the frequency of paydays is at least twice a month. Some require at least monthly pay, while a couple of jurisdictions generally require weekly pay but allow employers to seek exceptions. New York requires weekly pay for manual workers, except as authorized for large, responsible employers.
Executive, administrative and professional employees often can be paid monthly, rather than biweekly or semimonthly. The same also may be true for employees who are on commission.
Many state laws also spell out how much time may pass between the end of a pay period and the payday for that period. Usual intervals are between a week and 15 days, but there are some shorter and some longer. Many states require notice to workers about their pay periods, including some states that do not control frequency of pay. Check the law of your state for precise requirements.
Source: Philip D. Dickinson, J.D., CCH Wage & Hour Compliance Guide.
May debit cards replace paychecks? [August 22, 2005]
Issue: Your company would like to eliminate paper payroll checks. Electronic payrolls are more efficient, reduce costs and avoid the problems related to lost or stolen checks. Your company already offers direct deposit, but many hourly and part-time workers do not have bank accounts. You’ve heard that some employers offer payment through stored-value payroll debit cards. Is this option legal in your state?
Answer: In the past year, eight states have passed laws or adopted regulations that expressly authorize the use of payroll debit cards. Most other states permit direct deposit and probably allow some form of payroll debit card, but there may be restrictions.
A payroll debit card works like a phone card or personal stored-value card issued by Visa or Mastercard. Employees’ net pay is loaded on to the card, and they may take that card to an ATM and use a PIN to withdraw cash. With an international-brand card, workers also can make purchases, wire transfers to family members and add additional value to the cards.
With a stored-value card, employees do not need separate checking or savings accounts. Consequently, financial institutions, card issuers and payroll services tout their convenience for employees who do not have personal bank accounts or credit cards and often depend upon expensive check-cashing services.
State rules. The eight states that expressly approve use of payroll debit cards are: Delaware, Maine, Maryland, Minnesota, North Dakota, Michigan, Nevada and Virginia. However, employees must accept this option voluntarily and usually are entitled to make at least one free withdrawal up to the full amount. Employers also should advise workers of any fees.
Eight additional states have no law regulating the method of payment: Alabama, Louisiana, Nebraska, North Carolina, Ohio, Oklahoma, Washington and Wisconsin. The laws of Mississippi, Missouri and Tennessee similarly place no restrictions on electronic payments. In these 11 states, employers may use payroll debit cards, even on a mandatory basis.
Iowa, South Dakota and Texas broadly allow employees to agree to forms of payment other than cash or check. On the other hand, laws on the books in Hawaii, Kentucky and the District of Columbia arguably still require payment in cash or by check. Pennsylvania law permits other forms of payment as authorized by regulation, but no such regulation exists.
Twenty-seven other states expressly authorize some form of electronic funds transfer or direct deposit of employees’ pay. However, nearly all of these statutes contemplate transfer to an employee-designated account at an established bank, savings and loan, credit union or other approved financial institution, sometimes within the state.
Payroll debit cards may be acceptable in these states, if the accounts are set up at a qualifying financial institution. Accounts could take the form of an independent account for each employee or a master company account with employee sub-accounts. However, the latter arrangement may offer only limited insurance protection for the employees.
Source:CCH WAGE HOUR COMPLIANCE GUIDE
, ¶3061 through ¶3113.
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