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HR Focus: Wage and Hour Tips and Highlights

Volume 11, Issue 7
June 22, 2012

This article was prepared by Lyndel L. Erwin, Wage and Hour Consultant for the law firm of Lehr Middlebrooks & Vreeland, P.C. Prior to working with Lehr Middlebrooks & Vreeland, P.C., Mr. Erwin was the Area Director for Alabama and Mississippi for the U.S. Department of Labor, Wage and Hour Division, and worked for 36 years with the Wage and Hour Division on enforcement issues concerning the Fair Labor Standards Act, Service Contract Act, Davis Bacon Act, Family and Medical Leave Act and Walsh-Healey Act. A couple of years ago, I published an article listing the "top 10" wage and hour investigation issues. Recently, I came across another article on Mondaq.com listing the top 10 compensable time issues for non-exempt employees:

1. Waiting Time: Even if an employee is not actually performing work during a regular workday but is waiting for an assignment, the time is considered as compensable because he is not free to leave.

2. Attending Seminars, Lectures, and Training Programs: Unless the program is outside the employee's regular working hours, attendance is voluntary, the meeting is not directly related to the employee's job and the employee does not perform any work during the meeting, this time is considered as work time and must be paid.

3. Off the Clock Time: If the employee is performing work that benefits the employer, whether he has been instructed to do so or not, he must be paid for the time.  This includes time an employee may spend at home responding to e-mail or phone calls.

4. Attendance at Receptions, Dinners and Other Social Events: If a non-exempt employee is required to attend such an event, even though he is not performing any work while at the event, he must be paid for this time.

5. Volunteer Activities: Where employers offer "volunteering or team building" activities and require non-exempt employees to participate, the time is compensable even if the event is held on weekends and outside of normal working hours.

6. Travel as a Passenger Where No Work Is Performed: If this travel is outside of the employees normal shift hours, the time is not compensable.

7. Travel as a Passenger During Shift Hours: This time is compensable even though the employee performs no work during the travel. For example - an employee who is normally scheduled to work from 8am to 5pm Monday through Friday spends a Saturday from 2pm to 5pm flying to a meeting is entitled to be paid for the travel time.

8. Work Performed While Commuting: If the employee performs any work while commuting, such as driving a vehicle or writing reports, the employee must be paid for the time without regard to the time of day or day of week.

9. Interns: Factors that govern whether the time is compensable include: the internship program is structured around a classroom or academic experience; the intern receives oversight from a college or university and receives educational credit for the experience; the employer provides "job shadowing" under the close and constant supervision of regular employees rather than performing the same duties as regular workers; the internship is of fixed duration and there is no expectation that the intern will be hired at the conclusion of the internship.

10. Time Waiting for/Receiving Medical Attention: Time spent on the employer's premises or at the employer's direction during normal working hours and days must be considered as work time.  If your firm is chosen for an investigation, you should expect the Wage and Hour Investigator to review those areas to ensure that you are correctly compensating the employees for all of their work time.  In September 2011, Wage and Hour issued proposed revisions to the child labor regulations as they applied to minors working in agriculture.  Because of concerns that were raised about minors working on farms owned or operated by their parents, in February 2012 they issued a notice they were going to make some revisions to their proposal.  After further input from both Congress and the public, on April 26, 2012, Wage and Hour announced they were withdrawing the entire proposal and they would not address the issue further during the Obama administration.  Earlier this year, Senator Tom Harkin of Iowa introduced a bill to increase the minimum wage by $.85 per hour each of the next three years.  This would increase the minimum wage to $9.80 per hour.  Additionally, the minimum wage for tipped employees would increase to $3.00 immediately with further increases to bring it to 70% of the minimum wage, and the minimum salary for the executive, administrative and professional exemptions would increase to $655 per week with further increases of $200 per week for the following two years. Further increases of each of the amounts would be tied to the Consumer Price Index.  While I doubt that this bill will become law in this form, Congress has a way of increasing the minimum wage during election years, so I recommend that employers make sure they are aware of employment related legislation that is being considered this year.  I recently saw where Mr. Paul DeCamp, former Wage and Hour Administrator under President George W. Bush, spoke to a group of corporate attorneys discussing the increased enforcement by Wage and Hour, as well as increased private litigation.  He stated there has been a 50% increase in Wage and Hour staff in recent years and the numbers of Wage and Hour suits filed have increased from less than 2,000 in 2001 to over 7,000 in 2011.  As in previous years, Wage and Hour has targeted certain industries for investigations.  Those include residential construction, hospitality, home health care, childcare and janitorial companies. In view of the extra scrutiny being put on employee compensation, I recommend that employers take a very close look at their pay practices to ensure they are paying employees in compliance with the Fair Labor Standards Act.  This HR Focus article was prepared by Lehr Middlebrooks & Vreeland, P.C., a member of the Worklaw® Network and first appeared in their Employment Bulletin, Vol. 20, Issue 5 (May 2012). Reprinted with permission.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.