Event Archive

Common Wage and hour issues: we pay our employees, why are they suing us

   

Contact Info

CRUICHKSHANK & ALANIZ LLP

Brett Holubeck

bholubeck@a-c-law.com

20333 State Hwy 249, Ste. 272
Houston, TX 77070
(281) 833-2200

NOVATIME TECHNOLOGY, INC.

Kyle Glave, Sales Director – Eastern Region

Kyle.glave@novatime.com

9680 Haven Ave.
Rancho Cucamonga, CA 91730
(909) 895-8100

Questions & Answers:

Q1

If we offer on-line training for employees that is completely voluntary (basically for skills improvement), but we offer gifts or prizes for completed training modules, does this time need to be compensated for the training time?

A1

No, I wouldn’t compensate that time as long as it is truly voluntary and the employer does not make the employee believe that they would be adversely affected or punished for not attending the training. The gifts or prizes just serve as an incentive for the employees to participate, and that’s fine.

Q2

What if you're attending a Team Building activity during work hours away from the office but its voluntary, do they need to be compensated?

A2

This is an interesting question because of what is meant by “voluntary”. If the employee has the choice between going to the office that day or going to the team building activity, then they should still be compensated for this time. If the activity is truly voluntary (on a non-work day and the employee is not otherwise required to work), then that time is not compensable.

Q3

Is the rate for Highly Compensated Employee (HCE) for 2018 is $120K or $100K?

A3

Remember there are a couple different types of highly compensated employees. The presentation discussed the overtime exemption for highly compensated workers. To qualify for this exemption, an employee must be paid a salary of at least $100k, primarily perform office or non-manual work, and customarily and regularly perform at least one of the exempt duties or responsibilities of an exempt executive, administrative or professional employee. The DOL has announced that it plans to propose a new overtime rule by the end of October 2018, which will likely go into effect in 2019 unless it is challenged.

HR and payroll personnel should avoid mistaking the exemption for overtime with the cap on 401k contributions for highly compensated employees, which takes effect when an employee is paid $120,000 or more.

Q4

I've had accountants with former employers sue because they were classified as exempt, and win. We had to go back and pay them unpaid overtime. Has that changed? We have several accountants who are not managers, do not have the ability to make business decisions, and while they have the ability to perform their duties without close supervision, they are doing routine monthly accounting-related stuff. I've been saying for nearly 5 years that we need to re-evaluate these roles and reclassify them as non-exempt, but HR keeps telling me they do meet the qualifications.

A4

Accountants may be exempt under the executive, administrative or professional exemption. However, not all accountants meet the duties and salary basis test. Accountants or bookkeepers that perform simple bookkeeping tasks usually do not meet any exemption. Remember, the test is based on more than just the job title.

Accountants may meet the executive exemption if their primary duty is management, they manage 2 or more full-time employees, have authority to hire or fire other employees or their suggestions for firing, hiring and promoting must be given a particular weight, and be paid at least $455 per week.

To meet the administrative exemption, the accountant must perform office or non-manual work related to the general business operation and their primary duty must include the exercise of discretion and independent judgment with respect to matters of significance. They also must be paid at least $455 per week.

To qualify for the professional exemption, an accountant’s primary duty must be the performance of work requiring advanced knowledge, intellectual in character, and requires consistent exercise of discretion and judgment. Their primary duty must be the performance of work requiring advanced knowledge, intellectual in character, and requires consistent exercise of discretion and judgment. They must also be paid at least $455 per week.

Q5

One of our accountants, terminated without cause (just, we don't need you anymore) is pissed and suing for unpaid overtime stating he was misclassified as exempt. He did routine accounting stuff: booked revenue and expenses, reconciled GL accounts, sent billing for AR. No direct reports, no management duties or title. His position would have been non-exempt in my prior positions but it appears the regulations have loosened up?

A5

This is a fact specific question and will depend on their duties and how the standard has been interpreted in that jurisdiction. There was a case against KPMG (Pippins v. KPMG) in the Second Circuit (New York, Connecticut, and Vermont) in 2014, which found that entry level accountants that are audit associates are exempt from overtime even though they perform routine tasks. They meet the professional exemption because they are employed in a field of science and learning, rely on knowledge customarily acquired through prolonged specialized instruction, and consistently exercise professional judgment. Moreover, the recent Supreme Court case (Encino Motorcars v. Navarro) indicates that courts will give a broader reading to interpreting the various exemptions and more workers should qualify for the various exemptions.

Q6

What states require payment to maintenance employees who use their own tools?

A6

Generally, employers must provide employees with the tools necessary to do their job. In California, employers must pay double the minimum wage to employees that bring their own tools that are necessary to perform their job. This includes employees in beauty schools and mechanics and similar maintenance employees.

D.C., Kansas, Maine, Montana, New York, and Oregon do not allow employers to deduct the costs of tools from employee wages if the tools are primarily for the benefit of the employer.

Under federal law, the only requirement is that employers that require employees to purchase their own tools cannot cause employees’ wages to fall below the minimum wage or to reduce their overtime compensation. Also, under OSH Act regulations employers must pay the full costs of personal protective equipment (PPE) required for employees to perform their jobs.

Regardless of the jurisdiction that you are in, in the current labor market you must offer applicants a sufficient wage to obtain enough employees for your business.

Q7

Can you require your staff to combine their two 15 minute breaks and use that 30 min as their lunch time?

A7

This is a state-specific question, and it will depend on the state. Some states (e.g., California, New York, and several others) have very specific requirements for meal and rest periods, but other states are not as stringent. In California, you are not allowed to combine two 15-minute breaks, but in other states, there may be some flexibility. Generally, you will need to provide those breaks if they are required.

Q8

Those aren’t accountants - those are bookkeepers; “Accountant” has a specific meaning in the profession

A8

Yes. Generally, accountants that do not meet the exemption for overtime are primarily engaging in bookkeeping tasks that do not require advanced knowledge (professional exemption) or independent judgment (administrative exemption).

Q9

We have tower beach lifeguards. We are a government agency in CA. We do not give them meal breaks, instead pay them for it. Is this allowed? Thank you.

A9

California permits employees to agree to waive their first meal break by mutual consent provided that the employee does not work more than six hours per day. Employees must be paid for this time. Employees may waive their second meal break (if they work more than 10 hours per day) if the total hours worked in that day is not more than 12 hours, the employer and the employee agree to waive the meal period, and the first meal break of the workday was not waived.

Employers and employees may also agree to on duty meals in very limited circumstances. The nature of the work must prevent the employee from being relieved of all duties, it must be agreed to in writing by the employer and the employee, it must be paid, and the employee must be permitted to revoked in writing by the employee.