1. U.S. Department of Labor Wage & Hour Division & Montana Department of Labor Labor Standards Bureau

2. This presentation is intended as general information only and does not carry the force of legal opinion. Both the U.S. Department of Labor and Montana Department of Labor are providing this information as a public service. This information and related materials are presented to give the public access to information on both the Department of Labors’ programs. You should be aware that, while we try to keep the information timely and accurate, there will often be a delay between official publications of the materials and the modification of these pages. Therefore, we make no express or implied guarantees. The Federal Register, the Code of Federal Regulations, Montana Code Annotated and the Administrative Rules of Montana remain the official source for regulatory information published by both the Departments of Labor. We will make every effort to keep this information current and to correct errors brought to our attention. Disclaimer

3. Montana Department of Labor & Industry Employment Relations Division Labor Standards Bureau Wage & Hour Unit PO Box 201503 Helena MT 59620 (406) 444-5600 www.mtwagehourbopa.com U. S. Department of Labor Wage & Hour Division 150 East Social Hall, Ste 695 Salt Lake City, UT 84111-1534 (801) 524-5706 http://www.dol.gov/whd/index.htm CONTACT INFORMATION

4. Wage Payment Act State Minimum Wage & Overtime Laws Prevailing Wage Child Labor Laws Administered By the Wage & Hour Unit

5. Employment Relationship Employee? Contractor? Volunteer

6. Classified vs. Certified Employees Classified (non-exempt) employees – Keep record of hours worked – need to be paid for all hours. If hours exceed 40, overtime as well. For coaching positions only – Need to make sure compensation plan complies with law. Stipend vs. Salary Certified (exempt) employees – Salary would pay for all hours. May vary depending on time devoted to coaching.

7. Executive Employees 541.100 Administrative Employees 541.200 Professional Employees 541.300 29 CFR Part 541 – Salaried Exemptions Computer Employees 541.400

8. 1. District Clerks can be employed as a bona fide administrative employee and exempt from overtime? It Depends

9. 2. If a person is hired as office manager and paid on a salary basis with main duties consisting of scheduling employees, bookkeeping and answering the phone, they do not need to be paid overtime. FALSE

10. Meal Credit, Training Wage, or Tip Credit Montana Subject to Cost-of-Living Adjustment $8.05 per hour Minimum Wage

11. Non-exempt employees - Time and one-half for all hours worked in excess of 40 in the workweek. Counts for hours worked in all positions. Authorized or not – time is still worked to benefit of employer. 24.16.1005 ARM Employer must take steps to control work being performed. 39-3-405 MCA OVERTIME

12. 5. Holiday pay does not have to be included in the calculation of overtime. TRUE

13. 39-3-405 MCA Overtime is to be paid for actual hours worked in excess of 40 in the workweek. Hours worked Time off would not be actual hours worked. 20-1-305 MCA Definition of School Holidays Attorney General Opinions Montana School Board’s Association

14. 15. At the end of the school year, classified employees can opt to have their vacation leave paid out or carry over to the next school year. TRUE

15. 2-18-617(5) MCA 2-18-617(1) MCA – “ Annual leave may be accumulated to a total not to exceed two times the maximum number of days earned annually as of the end of the first pay period of the next calendar year. Excess vacation time is not forfeited if taken within 90 calendar days from last day of the calendar year in which excess was accrued.” Allowances given for extensions to the 90 days in order to allow employee to use excess. 2-18-617(5) MCA – School district can provide cash compensation for unused vacation leave in lieu of accumulation through agreement or CBA. Benefit defined under 2-18-612 MCA

16. Vacation Requirements: Classified Staff: Earned based on Title 2 Certified Staff: Earned based on contract or Collective Bargaining Agreement Administrative Staff: Earned based on contract

17. 39-3-204 & 39-3-205 MCA – Payment of Wages Terminated / Laid Off – employee to be paid within 4 hours or by end of business day unless employer has pre-existing policy extending the time for payments. Cannot be extended beyond next scheduled pay day for period separated or 15 calendar days, whichever occurs first. Quit – employee to be paid on the next scheduled pay day for the period separated or 15 calendar days, whichever occurs first. Still Employed – employee to be paid within 10 business days (Monday through Friday) from end of pay period.

18. 7. If an employee advises a school sponsored club, all hours would be considered work time. TRUE

19. VOLUNTEERS  Code of Federal Regulations, Part 553.100 (a)An individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered, is considered to be a volunteer during such hours. Individuals performing hours of service for such a public agency will be considered volunteers for the time so spent and not subject to sections 6, 7, and 11 of the FLSA when such hours of service are performed in accord with sections 3(e)(4) (A) and (B) of the FLSA and the guidelines in this subpart. (c) Individuals shall be considered volunteers only where their services are offered freely and without pressure or coercion, direct or implied, from an employer. (d) An individual shall not be considered a volunteer if the individual is otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to volunteer.

20. 8. An employee is paid biweekly (every two weeks). The overtime is figured for all hours worked over 80 in the pay period. FALSE

21. SUNMONTUEWEDTHURS FRI SAT 1 2 3 4 5 6 7 8 9 10 11 (121314 15 16 17 18) 192021 22 23 24 25 262728 29 30 31 SUNMONTUEWEDTHURS FRI SAT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30

22. 9. An employer conducts a mandatory staff meeting after regular work hours. The time spent at the meeting is not during their scheduled work time so the employees need not be paid for that time. FALSE

23.  Voluntary  Outside Regular Working Hours  No productive work during attendance  Not job related ARM 24.16.1009 Hours Worked

24. 10. An employee lives in Helena and is traveling to Bozeman to attend a training seminar. The employee will leave at 7:00 a.m. and return to Helena at 6:30 p.m. on the same day. The employee normally works an 8 hour day. This employee only needs to be compensated for a regular 8 hour day. FALSE

25. ARM 24.16.1010 -- Travel Time  Home to Work – (Special One Day Assignment)  Travel All in the Day’s Work –  Travel Away From Home Community –  Work Performed While Traveling –

26. 11. An employee works for an employer and earns two different rates of pay. This employee needs to be paid overtime at the last rate worked. FALSE

27. Weighted Average 36 hours x $8.05/hr = $289.80 10 hours x $8.25/hr = $ 82.50 46 total hours $372.30 regular wages $372.30 ÷ 46 = $8.09 regular rate $8.09 ÷ 2 = $4.05 ½ rate $4.05 x 6 overtime hours = $24.30 $372.30 regular earnings for all hours worked $ 24.30 additional overtime earnings $396.60 total due Overtime

28. 16. A bus driver is to be compensated only for the time spent driving the bus to a school function out of town. FALSE

29. Weighted Average 500 miles (10 hrs) x $.30/mile = $150.00 1 trip piece rate (10 hrs)$100.00 22 hours x $8.25/hr = $181.50 42 total hours $431.50 $431.50 ÷ 42 = $10.27 regular rate $ 10.27 ÷ 2 = $5.14 ½ time rate $ 5.14 x 2 overtime hours = $10.28 $431.50 regular earnings for all hours worked $ 10.28 additional overtime earnings $441.78 total due Overtime

30. 12. Compensatory time can be provided to employees instead of receiving overtime in the public sector. TRUE

31. FLSA Title 29 Part 553 – §553.20 Authorizes only state and local governments to offer compensatory time in lieu of overtime compensation. §553.21(3)(A) Limits the amount of compensatory time earned to 480 for employees engaged in public safety activities, emergency response activities, or a seasonal activity. If work does not involve these activities compensatory time is limited to 240 hours. If the employee exceeds these limits, the time must be paid in overtime compensation.

32. Overtime - Compensatory Pay in a week comp time is earned: 40 hrs regular time X $10.00/hr= $400.00 4 hours OT x 1.5 = 6 hrs compensatory time 44 hours worked Paid $400.00 Pay in a week comp time is used: 34 hours regular time X $10.00/hr = $340.00 6 hours compensatory time X $10.00/hr = $ 60.00* 40 hours Paid $400.00 *6 hrs X $10 = 4 hrs X $15 Overtime

33. 14. An employee is moving computer equipment when a laptop slips and breaks. The employer has a company policy to withhold damages from the employee’s paycheck. The employee signed the handbook acknowledging they are aware of the policy so the employer can withhold the damages or cost of replacement from their paycheck. FALSE

34. Attorney General Opinions Volume 36, No. 17 / Volume 25, No. 11  Employers cannot withhold from wages for damages, shortages, or mistakes. 24.16.1507 ARM – “Free and Clear”, “Kickbacks”  Wages have to be paid finally and unconditionally. 39-3-208 MCA  Contracts not in compliance with law are null and void

35. 18. It is required by both federal and state law that employees are to receive a 15 minute break for every four hours worked and a lunch break of at least 30 minutes for every six hours of work. FALSE

36. If employer chooses to provide rest break or meal period, 24.16.1006 ARM would apply to determine if time is hours worked.  5-20 minute break is work time.  30 minutes or more for meal period where employee is completely relieved from duty is not work time. There is no state or federal requirement for employer to provide rest break or meal period.  Benefit may be determined or provided through CBA

37. 23. It is the employee’s responsibility to keep track of all hours worked and to provide that information to the employer. FALSE

38. Employer can determine how to keep and maintain time records – time clock vs. on your honor system Rounding practices are allowed under ARM 24.16.1012 – has to benefit both parties and cannot be rounded beyond the nearest quarter hour. All employees are encouraged to maintain their own records – human and computer errors happen. Use to compare and ensure compliance. Garsjo Supreme Court decision. Determined that if employer fails to maintain records, employee’s records will be used with reasonable inference. Could transfer burden of proof.

39. Administrative Process Penalties Appeal Rights Investigate

40. Prevailing Wage What is it? Does it affect me? Jurisdiction

41. Montana’s Little Davis-Bacon Act Contracts for construction or non-construction services in excess of $25,000 let by the state, county, municipality, school district, or political subdivision. Minimum wage amount that workers must be paid on public works contracts (basic hourly rate and fringe benefits) Prevailing Wage

42. What we do… Conduct yearly surveys to determine wage rate schedule Establish wage rates for use on public works contracts Inspect and audit payroll records Investigate wage complaints Conduct on-site visit on projects Educate employers and employees Prevailing Wage

43. Child Labor Age Restrictions Hour Restrictions Hazardous Occupations Jurisdiction

44. Montana Child Labor Standards Act of 1993 Protect young workers from employment that might interfere with their educational opportunities or be detrimental to their health or well-being.

45. Minor Individual that is under 18 years of age, except: Has received a high school diploma or a passing score on their G.E.D. exam; or Is 16 years of age or older and is enrolled as a registered state or federal apprentice

46. Youths of Any Age May Be Employed By their parents/legal guardians Agriculture/farming with parental consent Delivery/collection of newspapers Casual, community, non-revenue raising uncompensated activity Actor, model or performer Legislative aide Casual domestic work at a person’s home Official or referee for nonprofit athletic organization Exemptions

47. Jurisdiction Applies to all minors – migrant as well as resident. Montana is looks to Federal statutes for clarification Enforced by County Attorney or USDOL

48. 16 & 17 year olds There are no state or federal restrictions on the number of hours a 16 or 17 year old can work Hour Restrictions

49. 14 & 15 year olds During school hours Before 7 a.m. or after 7p.m. during the school year; Before 7 a.m. or after 9 p.m. outside the school year Applies to homeschool Hour Restrictions

50. 14 & 15 year olds More than 3 hours on a school day; 18 hours in a school week; 8 hours on a non-school day; 40 hours in a non-school week Hour Restrictions

51. Jobs 14 & 15 Year-Olds May Do

52. Jobs 15 Year-Olds May Do

53. Prohibited Jobs for 14 or 15 year olds

54. Prohibited Jobs for 16 or 17 year olds

55. Hazardous Occupations 17 Occupations considered hazardous by the U.S. Department of Labor.

56. HO 1 Manufacturing and storing of explosives HO 2 Driving or Outside Helper on Motor Vehicles HO 3 Coal Mining HO 4 Forest firefighting, fire prevention, forestry service, logging, and sawmilling HO 5 Power-driven Woodworking Machines HO 6 Exposure to radioactive substances HO 7 Power-driven Hoisting Apparatus HO 8 Power-driven Metal-forming, Punching & Shearing machines HO 9 Mining, other than coal mining HO 10 Power-Driven Meat Processing Machines HO 11 Power-Driven Bakery Machines Hazardous Orders Non-Agriculture

57. HO 12 Balers, Compactors & Power-Driven Paper-Products Machines HO 13 Manufacturing bricks, tile and kindred products HO 14 Power-Driven Band Saws, Circular Saws, Guillotine Shears, Chain Saws, Reciprocating Saws, Wood Chippers & Abrasive Cutting Discs HO 15 Wrecking, Demolition, & Ship Breaking Operations HO 16 Roofing Occupations & All Work On or About a Roof HO 17 Occupations in Excavation Hazardous Orders Non-Agriculture

58. 16 & 17 Year Olds Once a youth reaches 16 years of age, he or she is no longer subject to the Federal agricultural youth employment provisions* Agriculture *In non-agriculture a youth must be 18 years old to no longer be subject to the FLSA provisions

59. 14 or 15 year olds Agriculture May work outside school hours in any agricultural occupation except the 11 hazardous farm jobs* *The eleven hazardous occupations does not apply to youths employed on farms owned or operated by their parents or guardians

60. Under 14 Years Old Agriculture On small farms, less than 500 man days per quarter, may work with written parental consent or on a farm that employs their parent or guardian

61. Tractor over 20 PTO horsepower Corn picker, grain combine, hay mower, hay baler, potato digger, mobile pea viner, feed grinder, crop dryer, forage blower, auger conveyor, power post-hole digger, etc. Trencher or earthmoving equipment, fork lift, power-driven circular, band, or chain saw; Working in a yard, pen, or stall occupied by a bull, boar, or stud horse maintained for breeding purposes; a sow with suckling pigs; or a cow with a newborn calf Felling, buckling, skidding, loading, or unloading timber with a butt diameter > 6 inches; Working from a ladder or scaffold at a height of over 20 feet; Driving a vehicle to transport passengers, or riding on a tractor as a passenger or helper Working inside a fruit, forage, or grain storage Handling or applying toxic agricultural chemicals identified by the words "danger," "poison," or "warning" or a skull and crossbones on the label; Handling or using explosives; and Transporting, transferring, or applying anhydrous ammonia. Hazardous Orders Agriculture

62. Most Common Violations (Based on 2008 US DOL Survey) Hour restrictions – 14 & 15 year olds working late Employee performing hazardous duties outside of what they were hired to do – Forklifts – Meat Slicers

63. QUESTIONS