Q & A: Wage and hour issues
Q. “ Do I need to pay to orient new hires?”
A. According to DOL’s Fact Sheet on Hours Worked, orientation and meetings for new hires must be paid if they’re held within normal work hours, are mandatory, related to their employment and generate some work product. In addition, in a recent nonadministrator DOL opinion letter, the department approved a tentative employer policy on recording non-exempt employees’ compensable time during at-home on line training.
Q. “ I find the administrative exemption confusing. Can you help?”
A. You are not alone – the administrative exemption has sparked more litigation than any other under the FSLA. Under federal law, a person is employed in an administrative capacity when their primary duties are:
1) The performance of office or non-manual work directly related to the management or general business operations of the employer or employer's customers; and 2) where they customarily and regularly exercise discretionary or independent judgment with respect to matters of significance. State laws can be even more restrictive.
Classic examples are clerical and administrative support personnel who don’t make the type of decisions necessary for the exemption, but who are often classified as exempt. For more information, click here: http://www.dol.gov/esa/regs/compliance/whd/fairpay/fs17c_administrative.pdf
Q “What about non-exempt employees who use their BlackBerries or cell phones after working hours?”
An employee’s use of electronic devices can potentially violate requirements about accurate time keeping and overtime. As a general rule, the Fair Labor Standards Act does not require an employer to account for "de minimis" levels of activity. According to a Second Circuit opinion:
"When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act. It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved."
"Factors to consider in determining whether work done by an employee should be compensable include:
(1) the practical administrative difficulty of recording the additional time;
(2) the size of the claim in the aggregate, and;
(3) whether the claimants performed the work on a regular basis."
"It should be noted that according to a federal regulation, 10 minutes is not de minimis."