What's Happening at DOL Wage and Hour Division?

I recently attended a presentation by Jackson Lewis law firm, which covered many topics. The following are some of the highlights of what’s happening at the Department of Labor:

Among the top issues that their Wage & Hour Division is focusing its enforcement efforts include:

Computer boot-up/log off time. In other words, the time it takes for the computer to boot-up or power-down could be time worked.
Work performed away from the workplace. Are your employees sending e-mail from home? Are they engaging in social media that might be business related? If so, it could be time worked.
Independent contractor misclassification. The DOL and the IRS have entered into a Memorandum of Understanding regarding this issue.
Donning and doffing. When workers are required to wear personal protective clothing and/or equipment, the time to change clothing is time worked.
Rounding coupled with attendance rules. It's always okay to round up a quarter hour. It's rounding down that will get you into trouble.
Applying the administrative exemption. To meet the duties test of this exemption, the primary duties of the position is performance of office or non-manual work directly related to general business operations, the exercise of discretion and independent judgment (key words in the definition) on significant matters and payment on a salary basis (minimum $455/week) or on a fee basis (i.e., an agreed sum for a single job so long as it is at a rate that would equal $455/week if the employee worked 40 hours).

What's a company to do?

· Know the hot-button issues in your industry. For example, if you are a retail establishment, consider if assistant store managers engage in duties that meet the overtime exemption, or are engaging primarily in sales?

· Know your policies and practices. More importantly, assure that your policies and practices are being implemented in a consistent manner. Review policies with your supervisors and ask them if this is what they do.

· Determine if there are opportunities to strengthen your compliance with the Fair Labor Standards Act. Consider briefing managers and supervisors on the law's requirements and your policies.

· Implement change promptly and intelligently, and seek legal guidance if necessary.

The Big Book of HR includes a chapter on "The Legal Landscape of Compensation" that includes guidance on the Fair Labor Standards Act. Remember that laws and regulations are not static and change frequently.

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