Fair Labor Standard Act (“FLSA”) & Framingham Public Schools A Presentation by the Office of Human Resources
What is the purpose of FLSA? ● Restrict child labor ● Establish a minimum wage ● Establish a 40-hour work-week ● Require overtime pay of "time and a half" if >40 hours per week* ● Recordkeeping*
FLSA: Statutory Definitions ● “ Employ ” = “to suffer or permit to work” ● “ Workday ” = period between time on any particular day when employee commences his/her “principal activity” and time on that day when s/he ceases this “principal activity” ● " Work period " = "work week" → 7 consecutive days ● " Overtime " = "time actually worked beyond a prescribed threshold" ● “ Overtime threshold ” = 40 hours per work-week
FLSA Terms Exempt Employees Non-Exempt Employees ● Who at FPS? Directors; Units A and B; ● Paid hourly (don’t get paid if don’t work) some non-bargaining ● >40 hours → overtime ● Salary Level: at least $47,476/year ● Failure to record time worked → employee ○ Currently: $455/week ($23,660/yr) can file claim w/ DOL ○ 12/1/2016: $913/week ● Who at FPS? Units C, N, S and T; some ● Guaranteed salary basis non-bargaining ● Job Duties Test (to determine exemption) ○ Executive ○ Administrative ○ Learned Professional ⇒ exempt from all requirements (i.e minimum wage, overtime, recordkeeping)
Non-Exempt Employees & Overtime ● "Time worked outside of normal schedule" may not be the same as "time worked over 40 hours in a work-week." ○ Only the latter is "overtime" under FLSA ○ FLSA governs only pay due for "FLSA overtime" worked ○ Employers may use “overtime” and not mean “FLSA overtime”
Actual Time Worked & Overtime ● FLSA overtime pay for nonexempt employees is computed based on all the time the employee has actually worked in a work-week.
Actual Time Worked & Overtime Actual time worked = Employee's regular "on the clock" work time + "Off the clock" time spent performing job-related activities* *benefit the employer
Actual Time Worked & Overtime ● Regular shift time = ○ "Breaks" (if there are breaks) ○ Nursing breaks are included! “Non-productive" time (i.e. time spent by receptionist reading while ○ waiting for the phone to ring)
Actual Time Worked & Overtime ● Work-related activities that the employer “suffers or permits “is work time, whether on premises or not and whether "required" or not. ○ "Unauthorized" or "unapproved" work = work ⇒ Must be counted! ● Provided employer knows or should know it is being done and permits the employee to do it ● Privilege and responsibility of employer to "control the work" of its employees ● If employer does not wish employee to perform work → prohibit the employee from doing so if it does not wish to include that work time in the required FLSA pay computations ● But if an employee worked w/o permission → still must get paid!
Actual Time Worked & Overtime ● Not required to be be counted in computing overtime pay: ○ Holidays Vacation time ○ Sick leave ○ Funeral leave ○
Comp Time VS Overtime ● State/local governments permitted to give employees compensatory time: >1.5 hours for each hour of overtime worked ○ ONLY pursuant to ■ A collective bargaining agreement*, or ■ An agreement between employer and employee before performance of work ● Maximum comp time = 240 hours → after 240 hours: overtime for any additional overtime hours of work ● Employee may use accrued comp time w/in reasonable period after requested if won’t unduly disrupt operations of public agency ● Upon termination of employment, employer must pay off comp time.
Volunteers ● An individual cannot be an "employee" and a "volunteer" for the same position. ● An employer may not accept the benefit(s) of work performed by its nonexempt employees without counting the time in computing pay due under the FLSA.
Volunteers Example: Employee subject to the FLSA (i.e. school secretary) cannot work 40 hours/week + "volunteer" additional 10 hours/week in same job → Must be paid: 1) Regular wage for 1st 40 hours worked/week, AND 2) Time and a half remaining 10 hours worked during same week* *if work was in same position
Volunteers ● FLSA does not apply to "volunteer" workers. ● A "volunteer" does not receive any type of compensation (in the form of money or otherwise) for his or her work. ○ An individual who receives or expects to receive any type of compensation is not a "volunteer" under FLSA. ■ I.e. free lunch, free tuition, etc.
FLSA Exemptions A quick reminder...
Exempt Employees: A Warning To determine which employees are exempt from the FLSA: ● FLSA exemptions are subject to strict construction and are narrowly construed against employer, who has burden of proving exemption. ● Courts focus on actual activities to determine exempt status ○ Do not rely on resumes and job descriptions ○ Testimony concerning day-to-day job activities
Executive Exemption ● >$913/week; & ● Regularly performs all of the following: ○ Supervises >2 ○ Management is primary duty* ○ Genuine input into other employees’ job status (hiring, firing, assignments, etc.) ● Who at FPS? Superintendent, Assistant Superintendent, Directors *Primary duty = 50% of time
Administrative Exemption ● >$913/week; & ● Primary duty: office or non-manual work that ○ Is directly related to management or general business operation of the employer or employer’s customers ○ Involves the exercise of independent judgement and discretion over matters of significance ■ Examples: spend $, pay bills, select vendors, negotiate contracts ■ Beyond simple clerical work ● Who at FPS? Principals, assistant principals, coordinators, and supervisors ○ Hardest category to determine!
Administrative Exemption ● Select administrative office roles may qualify for administrative exemption ○ Administrative Assistants over insurance and benefits, curriculum ○ Administrative Assistant to the Superintendent ⇒ exempt depending on their duties ● NOT typical secretarial/ clerical work ● In education, this exemption most often leads to incorrect classification of district employees and potentially law suits.
Professional Exemptions ● >$913/week; & ● Primary duty must be work requiring ○ Knowledge of an advanced type ■ Customarily acquired by long course of specialized study; ■ Work is predominantly intellectual in character; and ■ Consistent exercise of discretion; OR ○ Invention, imagination or talent in a recognized field or artistic endeavor; OR ○ Teaching in a school system/educational institution; OR ○ Highly specialized computer knowledge* ■ Primary duty: designing systems, hardware or software
Learned Professional (A Subset of Professional Exemption) ● >$913/week; & ● Primary duty must be performance of work requiring advanced knowledge ○ Work that is ■ Predominantly intellectual in character & ■ Includes work requiring the consistent exercise of discretion and judgment ○ Advanced knowledge must be ■ In a field of science or learning; & ■ Customarily acquired by a prolonged course of specialized intellectual instruction ● Who at FPS? Teachers, Guidance Counselors, Literacy/Math Coaches ● Caveat: If time spent in work week on activities not essentially a part of and necessarily incidental to teaching duties >20% of time worked in work week → NOT exempt → overtime
Exempt Employees ● If employee primarily performs non-exempt work → overtime & minimum wage requirements may apply ○ i .e. if the director of maintenance spends most of his/her time doing hands-on maintenance→ most likely non-exempt ● Exempt employees are not covered by FLSA minimum wage and overtime provisions BUT are covered by equal pay provisions ● Substitute teachers are exempt under FLSA. ● FLSA provisions do not apply to the following: ○ Independent contractors ○ Bona fide volunteers ○ Trainees, such as student teachers
Appear As Exempt BUT Are NON-EXEMPT ● Computer personnel who do not ○ Perform work requiring highly specialized knowledge in systems analysis, programming, or software engineering; ○ Work as a systems analyst, computer programmer, software engineer or similarly skilled worker; and ○ Consistently exercise discretion and judgment ● Social workers ○ Whose college degree is not in social work and ○ Do not perform work that is ■ Predominantly intellectual in character and ■ Requires the consistent exercise of discretion and judgment
How will the 12/1/2016 FLSA Changes Affect FPS? Quite a bit...
Reclassification of Employees ● Many employees do NOT fit any of the exemptions so … ○ Need to be reclassified as non-exempt ■ ⇒ eligible for overtime! OR ○ Raise salaries
Reclassification of Employees
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