Navigating Federal Wage and Hour Compliance Issues under the Fair Labor Standards Act: 2-Day Exclusive Seminar

By: Janette Levey Frisch, Esq, Employment/HR Attorney | Founder, The EmpLAWyerologist Firm
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Course Description:

Periodically, the Wage and Hour Division (WHD) of the Department of Labor (DOL) issues updates and new regulations that employers must comply with or face stiff penalties. It is every organization’s responsibility to stay abreast of all pertinent information regarding FLSA laws and federally mandated compliance requirements.

During the last decade or two, employers have found it increasingly difficult to decide which employees are entitled to overtime. Those classifications are commonly referred to as exempt employees (those who meet the FLSA’s requirements to be exempt from overtime pay) and non-exempt employees (employees the law requires to be paid overtime).

The FLSA contains dozens of exemptions, which basically provide that specific categories of employers and employees aren’t subject to the Act’s overtime requirements. Most common are the “white-collar” exemptions for executive, administrative, and professional employees, computer professionals, and outside sales employees. Under the Trump Administration, the DOL has issued new proposed rules regarding certain overtime exemptions, among other key wage and hour topics.

Many employers believe that if their employees agree to certain pay arrangements, or agree to be classified as independent contractors, then there is no violation of the law. This is not the case. Employees cannot agree to waive their rights under the Fair Labor Standards Act. For example, offering your employees time off or additional benefits in place of overtime pay is still an FLSA violation—even if your employees sign a written contract to that effect. The FLSA and only the FLSA determines the employer’s FLSA obligations. In fact, even when an employee willingly goes along with, or even requests, an illegal pay arrangement s/he can still sue the employer for FLSA violations and recover any back pay he is owed under the law, in addition to keeping the extra pay and benefits he already pocketed under the illegal compensation system, and additional amounts in liquidated damages. If that’s not enough, you may also be on the hook for your employee’s legal fees!

If you are a federal government employer, you are NOT exempt from the FLSA’s requirements, even though they may not be exactly the same for you as they are for private employers. You, therefore, need to know what you are and are not obligated to do, so you don’t find yourself at the receiving end of an audit or lawsuit – or both.

Why Should You Attend:

The Fair Labor Standards Act (FLSA) applies to virtually all public and private employers and is chock- full of rules about everything from the minimum wage to overtime pay. Along with these rules come exceptions and exemptions, and myriad expectations as to what wages must be paid and how. In short, the FLSA has and continues to be a source of great confusion to many employers. If that’s not confusing enough, while both public and private employers are subject to the FLSA, the requirements differ for each. But ignoring it does not make it go away.

The United States Department of Labor (USDOL) is taking an increasingly active role in ensuring compliance with all aspects of the FLSA, including proper classification of workers as either independent contractors or employees, proper classification of employees as either exempt or non-exempt from minimum wage and overtime requirements and what constitutes compensable work time, to name just a few. That’s not all, though. The United States Department of Labor over the last several years has begun to collaborate with some of their state counterparts. Why is that? The reason is because failure to properly classify and pay workers means less payroll withholding, which in turn means less revenue going to the federal (and state) government coffers. The USDOL therefore has every incentive to crack down on FLSA violations, real and perceived. That is why you as an employer/manager/H.R. practitioner cannot afford to ignore or minimize their FLSA obligations.

Learning Objectives:

By the end of the seminar, you will get answers to the following questions:

  1. What types of set standards and rules help classify nonexempt employees?
  2. Which employees are provided an exemption from minimum wage and overtime provisions?
  3. What criteria are used to properly determine if your 1099 workers are properly classified as or are really employees?
  4. When must you pay for the time an employee spends “on-call”?
  5. How might you minimize the risk of employee claims that they worked “off the clock” and are therefore entitled to overtime pay?
  6. What are some of the proposed rules issued by the DOL and how will they impact your organization?
  7. How exactly does the FLSA apply to public employers?

Who will benefit:

  • Business Owners
  • Managers,
  • HR Representatives,
  • HR Generalists,
  • HR Assistants,
  • Payroll Professionals
  • Chief Financial Officers
  • Controllers
  • Consultants,
  • Managers,
  • Supervisors, etc.

Course Outline

Day One (8:30 AM – 4:30 PM) FLSA CLASSIFICATION ISSUES
  • Registration Process: 8:30 AM – 9:00 AM – Registration
  • Session Start Time: 9:00 AM
  • 09.00 AM - 09.45 AM
    • Overview
      • What is the FLSA?
      • Minimum Wage
      • Overtime
      • Required Records
      • Title 5 of the FLSA
  • 09.45 AM - 10.15 AM
    • Who Administers the FLSA (DOL? OPM?)
      • DOL
      • OPM
    • Classifications
      • Employee or Independent Contractor?
        • Definitions
          • Benefits
          • Risks
  • 10.15 AM - 11.00 AM
    • Tests
      • IRS Test
        • Right to Control
        • Economic Realities
  • 11.00 AM - 12.00 PM
    • Hybrid Test
    • ABC Test (NJ and MA)
    • Common themes
    • Cases
  • 12.00 PM - 01.00 PM - Lunch
  • 01.00 PM - 02.00 PM
    • Exempt v. Non-Exempt
      • Categories (e.g. Executive, Administrative)
  • 02.00 PM - 03.15 PM
    • Salary Basis Test
      • Safe Harbor Policy
      • Threshold
      • DOL Proposed Regulations
  • 03.15 PM - 04.30 PM
    • Duties Test
      • Job Titles and Descriptions
      • Job Evaluations, Supervisor and Employee Interviews
      • Discretion
      • Supervision
      • Authority
  • Day Two (8:30 AM – 4:30 PM) RATE, PAY, WORK TIME, LITIGATION, BEST PRACTICES
  • 09.00 AM - 09.30 AM
    • Pay Included in Regular Rate
      • Nondiscretionary bonuses;
      • Commissions;
      • Lodging, meals;
      • Sick Leave bonuses;
      • Hazard pay;
  • 09.30 AM - 10.00 AM
    • Pay not included in Regular Rate (e.g. discretionary bonuses, overtime premiums, stock options)
  • 10.00 AM - 10.45 AM
    • Best Practices
  • 10.45 AM - 12.00 PM
    • Scheduling – Defining the workweek;
    • Work Time – Hours Worked Under the FLSA
      • Off the Clock Time (Portal to Portal Act, de minimus time);
      • Waiting Time
      • On-Call Time
      • Rest Periods;
      • Meal Breaks;
  • 12.00 PM - 01.00 PM - Lunch
  • 01.00 PM - 02.00 PM
    • Sleeping Time/Other Activities;
    • Time Worked At Home/Remotely
    • Lectures/Training;
    • Travel
    • Donning and Doffing
  • 02.00 PM - 2.45 PM
    • Wage and Hour Litigation – Some Caveats Common Errors to Avoid
      • Required Breaks
      • Nursing Mothers
      • Youth Employment
  • 02.45 PM - 3.30 PM - IRS and DOL Collaboration
  • 3.30 PM - 4.30 PM - Best Practices
  • Meet Your Instructor

    Janette Levey Frisch, Esq
    Janette Levey Frisch, Esq,
    Employment/HR Attorney | Founder, The EmpLAWyerologist Firm

    Janette Levey Frisch is an attorney with over 20 years’ of legal experience. Ms. Frisch, owner of The Emplawyerologist Firm, is on a mission: to help employers stay in compliance and out of court. Her extensive areas of expertise include federal and state anti-discrimination laws, FMLA, ADA, wage and hour issues, I-9’s, criminal background checks, employment agreements, terminations, and a myriad other challenges impacting employers today. Ms. Frisch worked as in-house counsel in the temporary staffing industry for almost nine years prior to starting her own practice.

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