1 Wage & Hour Update Richard D. Tuschman, Esq. Epstein Becker & Green, P.C. Robert Cap, Esq. Markel Corporation

2 Enterprise Coverage  Employees who work for certain businesses or organizations (or “enterprises”) are covered by the FLSA. These enterprises must have at least two employees, and meet the following criteria: Coverage

3 Must have employees engaged in interstate commerce AND Annual gross volume of sales made or business done is not less than $500,000 Enterprise Coverage:

4 OR Hospital, business providing medical or nursing care for residents, school or preschool, government agency Enterprise Coverage:

5 Does employees’ handling of interstate goods or materials establish FLSA enterprise coverage if the employer is the ultimate consumer of those goods or materials? Ultimate Consumer Defense?

6 Individual Coverage  Even when there is no enterprise coverage, individual employees are protected by the FLSA if their work regularly involves them in commerce between States (“interstate commerce”) Coverage

7 Examples of employees involved in interstate commerce include Employees who:  Produce goods (such as secretary or factory assembly worker) that will be sent out of state  Regularly make telephone calls to persons located in other States Individual Coverage:

8 Examples of employees involved in interstate commerce include Employees who:  Handle records of interstate transactions  Travel to other States on their jobs Individual Coverage:

9 The vast majority of employees are protected by the FLSA, either because their employer is covered as an enterprise, or because the employee is covered as an individual Coverage – Bottom Line

10 Blue Collar Basics

11 Minimum Wage $6.55/hour (current federal) $7.25/hour (federal effective 7/24/09) ($7.21 Florida) Overtime (more than 40 hours per week) 1 ½ the Regular Hourly Rate FLSA – Non-exempt Employees

12 FLSA – Non-Exempt Employees Regular Rate generally Includes all Remuneration Shift and Holiday Premiums Commissions Non-Discretionary Bonuses Measured on a Work Week Basis No Comp Time

13 Breaks are not required Permitted Breaks of 20 Minutes or Less are Compensable Unauthorized Work Breaks or Extensions of Work Breaks Are Not Compensable When Employer Has Communicated that the Break is Unauthorized Break Time

14 Bona Fide Meal Periods (30 Minutes or More) Are Not Compensable Working Time Bona Fide Meal Periods

15 Home to Work Travel: An employee who travels from home before the regular workday and returns to his/her home at the end of the workday is engaged in ordinary home to work travel, which is not work time Travel Time

16 Time spent by an employee traveling as part of his/her principal activity, such as travel from job site to job site during the workday, is work time and must be counted as hours worked. Travel Time Travel That is All in a Day’s Work:

17 Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly work time when it cuts across the employee’s workday. This includes not only hours worked on regular working days during normal working hours but also during corresponding hours on nonworking days. As an enforcement policy, DOL does not consider as work time the time an employee spends in travel away from home outside of regular working hours as a passenger on an airplane, train, boats, bus, or automobile Travel Time Travel Away From Home:

18 Engaged to Wait vs. Waiting to be Engaged Waiting Time and On-Call Time

19 Working from Home If employer knows, or has reason to know about it, it’s compensable Track employee’s hours

20 Blackberry Time If more than de minimus - compensable Require employees to report time Implement policies setting limits on employees’ use of the devices

21 FLSA – Youth Employees Must be 14 years of age Limited hours worked by minors under the age of 16 Minors are prohibited from performing hazardous work (e.g., excavation, driving, operating power-driven equipment)

22 FLSA – Youth Employees General Exceptions: Newspaper delivery Babysitting Minor chores around a private home Theatrical, TV and Radio Entertainment

23 FLSA – Youth Employees Agricultural Exception: Youth of any age may work on their parents’ farm

24 Recordkeeping Posting: Employers must display an official poster outlining the provisions of the FLSA

25 Recordkeeping Required Records (electronic or paper format): 1.Employee’s full name and social security number 2.Address, including zip code 3.Birth date, if younger than 19 4.Sex and occupation 5.Time and day of week when employee’s workweek begins 6.Hours worked each day

26 Recordkeeping Required Records (electronic or paper format): 7.Total hours worked each workweek 8.Basis on which employee’s wages are paid (e.g., “$9 per hour”, “$440 a week”, “piecework”) 9.Regular hourly pay rate 10.Total daily or weekly straight-time earnings

27 Recordkeeping Required Records (electronic or paper format): 11.Total overtime earnings for the workweek 12.All additions to or deductions from the employee’s wages 13.Total wage paid each pay period 14.Date of payment and the pay period covered by the payment

28 Recordkeeping How Long Records Should be Retained Payroll records, collective bargaining agreements, sales and purchase records must be retained for three years

29 Recordkeeping How Long Records Should be Retained Records on which wage computations are based should be retained for two years (e.g., time cards and piece work tickets, wage rate tables, work and time schedules, and records of additions to or deductions from wages)

30 White Collar Exemptions

31 Executive Exemption Salary - $455 per week Primary Duty - Managing Direct the Work of Other Employees Hire/Fire Authority

32 Administrative Exemption Salary - $455 per week Office/Related to General Business Operations Discretion/Independent Judgment

33 Professional Exemptions Learned Creative

34 Learned Professionals Salary - $455 per week Advanced Knowledge Science or Learning Prolonged Specialized Intellectual Instruction Veteran Status Insufficient College Degree Requirement Generally Insufficient

35 Creative Professionals Salary - $455 per week Invention, Imagination, Originality, talent Artistic or Creative Endeavor Case-by-Case Journalists

36 Highly Compensated Employees Exemption Salary - $100,000 or more Office/Non-Manual Work Customarily and Regularly Perform at least One of the Duties of Executive, Administrative, or Professional

37 Outside Sales Exemption Sales, Orders, Contracts for which Consideration will be Paid by Client or Customer Customarily and Regularly Engaged Away from the Employer’s Place or Places of Business

38 Computer Related Occupations Exemption Salary - $455 per week OR Hourly - $27.63 per hour Must be Skilled Employee

39 Application of Systems Analysis Techniques and Procedures Design, Development, Creation, Testing, Modification – Hardware or Software Primary Duties Must Consist of: Computer Related Occupations Exemption

40 Employees Engaged in Manufacture, Service or Repair are Not Exempt Help Desk Employees Computer Related Occupations Exemption

41 Penalties

42 Back Wages  2 years  3 years for willful violation Liquidated Damages Attorneys’ Fees Can Substantially Exceed the Wages Recovered Officer Liability Injunctive Relief Penalties

43 Opt-in vs. Opt- out Potential for large classes and huge verdicts Collective Actions x x

44 Thank you for your time! Richard D. Tuschman, Esq. Robert Cap, Esq.