Author: Rose H. Robbins

7 Important Things to Know About FLSA Compensation Requirements for a Salaried Employee

General Rule About Deductions From Full Salary Amount

In addition to meeting certain duties tests, to qualify for exemption from Federal Labor Standards Act (“FLSA”) overtime pay under the Regulations, Part 541, generally an employee must be paid at a rate of not less than $455 per week on a salary basis. As a general rule, if the exempt employee performs any work during the workweek, he or she must be paid the full salary amount. An employer may not make deductions from an exempt employee’s pay for absences caused by the employer or by the operating requirements of the business. If the exempt employee is ready, willing and able to work, an employer cannot make deductions from the exempt employee’s pay when no work is available.

To qualify for exemption from overtime pay, employees generally must meet certain tests regarding their job duties and meet certain compensation requirements. Job titles do not determine exempt status. Instead the exemption is determined by the specific job duties the employee performs in the business of his employer.

1.) Are any deductions from pay allowed for the salaried employee? 

Deductions from pay are allowed:

  • When an employee is absent from work for one or more full days for personal reasons other than sickness or disability;
  • For absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness;
  • To offset amounts employees receive as jury or witness fees, or for temporary military duty pay;
  • For penalties imposed in good faith for infractions of safety rules of major significance;
  • For unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions;
  • In the employee’s initial or terminal week of employment if the employee does not work the full week, or
  • For unpaid leave taken by the employee under the Federal Family and Medical Leave Act.

2.) What kinds of deductions are not allowed?

Deductions for partial day absences generally violate the salary basis rule, except those occurring in the first or final week of an exempt employee’s employment or for unpaid leave under the Family and Medical Leave Act. If an exempt employee is absent for one and one-half days for personal reasons, the employer may only deduct for the one full-day absence. The exempt employee must receive a full day’s pay for the partial day worked.

3.) What are some other examples of improper deductions include:

  • A deduction of a day’s pay because the employer was closed due to inclement weather;
  • A deduction of three days pay because the exempt employee was absent for jury duty;
  • A deduction for a two-day absence due to a minor illness when the employer does not have a bona fide sick leave plan, policy or practice of providing wage replacement benefits; and
  • A deduction for a partial day absence to attend a parent-teacher conference.

4.) What is the effect of isolated or inadvertent improper deductions?

Improper deductions that are either isolated or inadvertent will not violate the salary basis rule for any employees whose pay had been subject to the improper deductions, provided that the employer reimburses the employees for the improper deductions.

5.) What if the improper deductions are not isolated or inadvertent?

If an employer has an actual practice of making improper deductions from employees’ pay (as opposed to isolated or inadvertent improper deductions), the salary basis rule will not be met during the time period in which the improper deductions were made for employees in the same job classification working for the same manager(s) responsible for the actual improper deductions. Therefore, the affected employees will not have been paid on a salary basis as required for exemption during that time period.

6.) How do you distinguish between isolated or inadvertent improper deductions and an actual practice of making improper deductions?

An actual practice of making improper deductions demonstrates that the employer did not intend to pay employees on a salary basis. The factors to consider when determining whether an employer has an actual practice of making improper deductions include, but are not limited to:

  • The number of improper deductions, particularly as compared to the number of employee infractions warranting discipline;
  • The time period during which the employer made improper deductions;
  • The number and geographic location of employees whose salary was improperly reduced;
  • The number and geographic location of managers responsible for taking the improper deductions; and
  • Whether the employer has a clearly communicated policy permitting or prohibiting improper deductions.

If an employer has a clearly communicated policy that prohibits the improper pay deductions that includes a complaint mechanism, reimburses employees for any improper deductions and makes a good faith commitment to comply in the future, the salary basis of pay will not be violated unless the employer willfully violates the policy by continuing to make improper deductions after receiving employee complaints.

7.) What if the employer does not reimburse the employee for the deductions?

If the facts show that the employer has an actual practice of making improper deductions and the employer fails to reimburse employees for any improper deductions or continues to make improper deductions after receiving employee complaints, the salary basis rule is not met and the exemption is lost during the time period in which the improper deductions were made for employees in the same job classification working for the same manager(s) responsible for the actual improper deductions.

The determination of whether improper compensation deductions have occurred in any circumstance is best made by an experienced attorney. Call attorney Rose H. Robbins at (954) 946-8130 for a FREE  telephone consultation about your claim for minimum wage or unpaid overtime wage violations. Or you can complete the simple form below for confidential submission to our office.  Please be advised that by merely submitting this form, no Attorney-Client relationship is formed with this law firm.   You must provide your name,  home or cell phone number, your email address and your zip code in the form.  We serve the following counties: Broward, Highlands, Indian River, Martin, Miami-Dade, Monroe, Okeechobee, Palm Beach, and St. Lucie.

 

 

 

Salary Alone Does Not Determine Exemption From Overtime Pay

Neither a job title or salary alone determines exempt status from overtime pay. The Fair Labor Standards Act (“FLSA”) requires that most employees in the United States be paid at least the federal minimum wage for all hours worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek.

Call attorney Rose H. Robbins at (954) 946-8130 for a FREE  telephone consultation about your claim for minimum wage or unpaid overtime wage violations.

When does pay for compensable time become mandatory? For “white collar” employees, the FLSA does provide an exemption from both minimum wage and overtime pay for bona fide executive, administrative, professional and outside sales employee as well as certain computer employees.  To qualify for this exemption, employees generally must meet certain tests based on their job duties and be paid on a salary basis at not less than $455 per week.   The application of these tests to specific cases has been developed by the cases fought out in Courts. A Florida lawyer experienced in wage and hour litigation should analyze your particular job situation to find out if your FLSA rights have been violated and you are owed minimum or overtime wages.

However, these  “white collar” exemptions from overtime and minimum wages do not apply to manual laborers or other “blue collar” workers who perform work involving repetitive operations with their hands, physical skill and energy.  FLSA-covered, non-management employees in production, maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers are entitled to minimum wage and overtime premium pay under the FLSA, and generally are not exempt no matter how highly paid they might be.

Call attorney Rose H. Robbins at (954) 946-8130 for a FREE  telephone consultation about your claim for minimum wage or unpaid overtime wage violations. Or you can complete the simple form below for confidential submission to our office.  Please be advised that by merely submitting this form, no Attorney-Client relationship is formed with this law firm.   You must provide your name,  home or cell phone number, your email address and your zip code in the form.  We serve the following counties: Broward, Highlands, Indian River, Martin, Miami-Dade, Monroe, Okeechobee, Palm Beach, and St. Lucie

12 examples of violations of federal wage and hour law (FLSA) for breaks and lunches

Florida and Federal lunch break  laws force employers to pay for all compensable time worked by non-exempt employees including applicable overtime. The determination of what is “compensable” time under lunch labor laws as well other issues in an individual situation is a complex one and is best left to a labor lawyer with experience in  wage and hour laws and litigation.

The following are 12 examples of typical violations of compensable time for non-exempt employees  including violations for rest and meal breaks laws, travel times and on-call times:

1.) Work Break Law:

a) Lunch breaks for employees. Lunch labor laws (typically 30 minutes or more) do allow the employer not to compensate the employee as work time under certain circumstances. Thus, the employee must be completely relieved from duty for the purpose of eating regular meals. The employee is not relieved if he/she is required to perform any duties, whether active or inactive, while eating. An experienced labor lawyer will analyze the individual circumstances to determine when a lunch break is actually compensable.

b) Rest breaks for employees. Rest breaks of short duration, usually 20 minutes or less, are common in industry (and promote the efficiency of the employee) and are customarily paid for as working time. These short periods must be counted as hours worked. Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer’s rules, and any extension of the break will be punished.

2.) Compensable Time – FLSA law that is Applied to the Workweek to Calculate the Actual Number of Hours Worked:

Employees “Suffered or Permitted” to work: Work not requested but suffered or permitted to be performed is work time that must be paid for by the employer. For example, an employee may voluntarily continue to work at the end of the shift to finish an assigned task or to correct errors. The reason why the employee has continued to work is immaterial. The additional hours are work time and are compensable.

3.) Waiting time for employees: Whether waiting time is hours worked under the Act depends upon the particular circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time). For example, a secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been “engaged to wait.”

4.) On-Call time for employees: An employee who is required to remain on call on the employer’s premises is working while “on call.” An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee’s freedom could require this time to be compensated.

5.) Sleeping Time and Certain Other Activities: An employee who is required to be on duty for less than 24 hours is working even though he/she is permitted to sleep or engage in other personal activities when not busy. An employee required to be on duty for 24 hours or more may agree with the employer to exclude from hours worked bona fide regularly scheduled sleeping periods of not more than 8 hours, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night’s sleep. No reduction is permitted unless at least 5 hours of sleep is taken.

6.) Lectures, Meetings and Training Programs: Attendance at lectures, meetings, training programs and similar activities need not be counted as working time only if four criteria are met, namely: it is outside normal hours, it is voluntary, not job related, and no other work is concurrently performed.

 7.) Travel time for employees: The principles which apply in determining whether time spent in travel is compensable time depends upon the kind of travel involved and the job duties of the employee. This is a complex area and a Florida wage lawyer needs to carefully analyze the facts in each particular situation.

 8.)Home to work travel time for employees: 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.

 9.) Home to Work on a Special One Day Assignment in Another City: An employee who regularly works at a fixed location in one city is given a special one day assignment in another city and returns home the same day. The time spent in traveling to and returning from the other city is work time, except that the employer may deduct/not count that time the employee would normally spend commuting to the regular work site.

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

 11.) Travel Away from Home Community: 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. The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on nonworking days. As an enforcement policy the Division will not consider as work time that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.

12.) What does “Employ” Mean under the FLSA?

By statutory definition the term “employ” includes “to suffer or permit to work.” The workweek ordinarily includes all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed work place. “Workday“, in general, means the period between the time on any particular day when such employee commences his/her “principal activity” and the time on that day at which he/she ceases such principal activity or activities. The workday may therefore be longer than the employee’s scheduled time.

Call attorney Rose H. Robbins at (954) 946-8130 for a FREE  telephone consultation about your claim for minimum wage or unpaid overtime wage violations. Or you can complete the simple form below for confidential submission to our office.  Please be advised that by merely submitting this form, no Attorney-Client relationship is formed with this law firm.   You must provide your name,  home or cell phone number, your email address and your zip code in the form.  We serve the following counties: Broward, Highlands, Indian River, Martin, Miami-Dade, Monroe, Okeechobee, Palm Beach, and St. Lucie.