FLSA – Page 4 – Economic Thinking In Action

Useful data in analyzing FLSA and wage and hour cases involving truck drivers

Useful data for analyzing FLSA and wage and hour allegations in cases involving truck drivers. (Continued from previous post)

1. Waiting Time. The Bill of Lading (BOL) for a particular load. The BOL typically shows the time the driver arrived at the site and what time he/she started loading or unloading.

2. Pre- and Post-Trip Work. Driver’s Logs typically show the time of arrival at a truck yard and the time the driver left the yard to head to the first job site as well as the time left and returning from subsequent jobs.

3. Pay records

Allegations in a truck driver FLSA and wage and hour case

(Continued from previous blog post)

1. Waiting Time. The drivers are seeking to be paid for all time spent waiting at a load or delivery site.

2. Pre- and Post-Trip Work. Time spent time at the beginning and end of each shift doing pre- and post-trip inspections and other duties in the yard was allegedly not paid.

3. Driving Empty. The drivers were allegedly not paid hourly for driving empty trucks to and from job sites.

FLSA and wage and hour case involving truck drivers and per-load pay

Overview

In this case, several truck driver plaintiffs filed a FLSA and wage and hour lawsuit against a petroleum transport company that provides crude oil transportation services. Its drivers pick up crude oil from well sites and deliver that oil to refineries, pipelines and storage facilities, etc. The driver’s compensation plan for its drivers included: a) pay per load for transporting the oil; and b) hourly pay for certain other activities.

Pay Per Load. For transporting a load of oil, the company paid the drivers a certain percentage of the price it received from its customer for transporting that load.

Hourly Pay. Drivers received hourly pay for: i) washing a truck; ii) time spent waiting with a disabled truck; iii) time spent at a load or delivery site after a certain point; d) training & meetings

FLSA and wage and hour case involving truck drivers and per-load pay

Overview

Pay Per Load. For transporting a load of oil, the company paid the drivers a certain percentage of the price it received from its customer for transporting that load.

Rest Periods, Hybrid Pay Systems, and the Minimum Wage in California

Dwight Steward wrote:

Companies use many different systems to pay employees. One such system is a hybrid pay system, where an employee earns an hourly rate as well as a wage for productive tasks. For example, an employee who is paid $4 per hour and additionally $0.10 per box unloaded from a truck. Recent cases discuss how companies that utilize a hybrid pay system should pay their employees a minimum wage for rest periods.

According to a May 8, 2013 decision in Bluford v. Safeway Stores, “rest periods must be separately compensated in a piece-rate system. Rest periods are considered hours worked and must be compensated… A piece-rate compensation formula that does not compensate separately for rest periods does not comply with California minimum wage law.” In other words, earnings for productive tasks cannot be used to subsidize rest breaks.

Analyzing minimum salary guarantee plus extras 29 C.F.R §541.604(a)

Ok, so you have a group of exempt employees that receive a set salary amount and additional compensation each week. How do you analyze this type of OT exemption?

29 C.F.R §541.604 provides some guidance on the issues. For instance, 29 C.F.R §541.604 provides a number of examples where employees receiving this type of salary compensation would still be correctly classified as exempt workers. For instance in 29 C.F.R §541.604(a), an exempt employee guaranteed at least $455 each week would still be correctly classified if they received additional compensation of 1% sales commission or profits. The employees, according to 29 C.F.R §541.604 the employees could also receive additional compensation based on the hours worked above a normal week and remain correctly classified.

Paying exempt workers a varying amount each paycheck – Minimum guarantee plus extras 29 C.F.R §541.604(b)

Many of us think of an FLSA OT exempt salaried worker as receiving the same amount of pay each and every week. However some employers have their OT exempt workers pay tied to productivity measures such as the amount of hours worked. Assuming all the other conditions are met, 29 C.F.R §541.604, indicates that these types of pay arrangements can be acceptable and do not violate the salary basis of the FLSA. 29 C.F.R §541.604(b) in particular, provides some guidance on the issue.

The regulation indicates that the employee’s earnings can be computed on a varying basis ( hourly, daily, shift etc.) if the employment arrangement includes a guaranteed minimum amount and a reasonable relationship exist between the guaranteed minimum amount and the amount actually earned by the employee. 29 C.F.R §541.604(b) provides an example of a reasonable relationship exist between the guaranteed minimum amount and the amount actually earned by the employee. (Some employers provided the stated guarantee amount in the employees pay statements or other work documents)

The example in 29 C.F.R §541.604(b) suggest that a salaried employee who is receiving varying pay, but who has a stated guaranteed salary of at least 2/3 of the employee’s normal pay could be correctly classified as OT exempt. In the example, the employee has a stated guaranteed amount of $500 in a given week regardless of how much work is performed in the week. Further, the employee typically works four to five days (shifts) a week.

The regulation suggest that if the employee is paid at least $150 a shift then they are correctly classified according to the salary basis requirement. Using the assumed amount of $150 a shift, results in a ‘reasonable stated salary guarantee to pay relationship’ floor of 2/3. That is, the stated salary guarantee divided by the actual salary is 2/3. In this example, $500/(5 shifts)x($150) = $500/$750 = .66666 = .67 or 2/3.

Calculating overtime for non-exempt day rate workers according to 29 C.F.R §778.112

Calculating overtime for non-exempt day rate workers is covered under 29 C.F.R §778.112. The regulation can also be used ‘in reverse’ to audit or analyze the payment system of an given employer. Several resources and examples of calculating for non-exempt day rate workers is covered under 29 C.F.R §778.112 are discussed below.

1 The actual regulation. 29 C.F.R §778.112 Day rates and job rates.

http://www.gpo.gov/fdsys/pkg/CFR-1999-title29-vol3/pdf/CFR-1999-title29-vol3-sec778-112.pdf

2. Example of how to calculate overtime for a day rate worker from the Fisher Phillips website:

http://wage-hour.net/?tag=/29+C.F.R.+778.112

Note how the regular rate changes in each week. The regular rate depends on the actual hours worked. Not a set number of hours like 40.

3. Federal court cases involving day rates (hybrid day rates and partial day deductions) are discussed

In the first case the court found that the hybrid day rate and weekend hourly pay system violated §778.112. In the second case, the court found that the employers partial day deductions meant that the defendant did not have a valid day rate plan as laid out in §778.112.

http://flsaovertimelaw.com/tag/29-c-f-r-%C2%A7-778-112/

4. What’s new on 29 c.f.r §778.112 according to Google:

https://www.google.com/search?q=29+c.f.r+%C2%A7778.112&rlz=1C1CHFX_enUS479US479&oq=29+c.f.r+%C2%A7778.112&aqs=chrome..69i57.8731j0j7&sourceid=chrome&espv=210&es_sm=93&ie=UTF-8#q=29+c.f.r+%C2%A7778.112&start=0

What FLSA does not says about wages, overtime, and recordkeeping

FLSA, and what is actually required under it, are frequently misstated. While clearly some of FLSA requires a law degree to understand, the basic truths of the law can be obtained straight from the FAQ at the Department of Labor (DOL). So here are a few things that the FLSA does not provide for:

When are pay raises required?

Pay raises to amounts above the Federal minimum wage are not required by the FLSA.

Is extra pay required for weekend or night work?

The FLSA does not require extra pay for weekend or night work.

How are vacation pay, sick pay, holiday pay computed and when are they due?

The FLSA does not require payment for time not worked, such as vacations, sick leave or holidays (Federal or otherwise)

How is severance calculated and when is it due?

There is no requirement in the FLSA for severance pay.

When must breaks and meal periods be given?

The FLSA does not require breaks or meal periods be given to workers.

However, if employers do offer short breaks (lasting about five to 20 minutes), federal law considers these short breaks time for which employees must be compensated.

What must an employer provide to workers who want to express breast milk in the workplace?

Effective March 23, 2010, employers are required under the FLSA to provide unpaid break time and space for nursing mothers to express breast milk for one year after the child’s birth.

Are periodic performance evaluations required?

The FLSA does not require performance evaluations.

How many hours per day or per week can an employee work?

The FLSA does not limit the number of hours per day or per week that employees aged 16 years and older can be required to work.

How many hours is full-time employment? How many hours is part-time employment?

The FLSA does not define full-time employment or part-time employment. This is a matter generally to be determined by the employer. Whether an employee is considered full-time or part-time does not change the application of the FLSA.

When can an employee’s scheduled hours of work be changed?

The FLSA has no provisions regarding the scheduling of employees, with the exception of certain child labor provisions. T

When is double time due?

The FLSA has no requirement for double time pay.

Is extra pay required for weekend or night work?

The FLSA does not require extra pay for weekend or night work.

Are pay stubs required?

The FLSA does not require an employer to provide employees pay stubs. The FLSA does require that employers keep accurate records of hours worked and wages paid to employees.

What notices must be given before an employee is terminated or laid off?

The FLSA has no requirement for notice to an employee prior to termination or lay-off.

LA Raiders sued in Alameda County for off-the-clock work and other alleged wage and hour violations

Numerous news sources reported on the wage and hour lawsuit filed by one LA Raider cheerleader against the team for allegedly violating California state wage and hour laws.

Read the complaint here.

KQED (Northern area Public Radio) reports:

A member of the Oakland Raiderettes cheerleading squad sued the football team in Alameda County Superior Court on Wednesday, alleging that the club is in “flagrant violation” of an array of California wage and employment laws.

[The lawsuit] claims the Oakland Raiders club doesn’t pay the cheerleaders for all the time they spend working, withholds pay until the end of the season, and forces them to pay some of their own business expenses.

The lawsuit seeks to be certified as a class action on behalf of all present and former Raiderettes who cheered for the team since 2010.

[according to the complaint] the cheerleaders are paid only $1,250 per season, which amounts to less than $5 per hour for the time they spend rehearsing, performing and making required appearances at charity events.