THE FAIR LABOR
STANDARDS ACT (FSLA): OVERVIEW AND “NEW” IMPLICATIONS FOR NON-CERTIFIED PUBLIC
SCHOOL EMPLOYEES
Prepared By:
This article provides a summary and highlights
on the Fair Labor Standards Act (FLSA).
In addition, it will also cover recent changes that school systems in
PART 1:
OVERVIEW/BACK
The
Fair Labor Standards Act (FLSA) and the Federal Wage and Hour law are one in
the same. The FLSA (29 U.S.C. General
Statute 201 through 219) was adopted in 1938.
Schools were not covered in the original Act in 1938, but added in 1966
by an act from Congress. There are four
primary requirements of the Act:
I.
Defines Coverage: who
is a covered employee under the FLSA.
II. Determines wage and hour requirement (calculating
work time, etc).
III. Record Keeping Requirements
IV. Equal Pay Requirements
I.
Coverage: Who is A Covered Employee?
A.
“Non-Covered” (Exempt) Employees
1. “Non-covered or exempt employees are not subject to
the requirements of the FLSA and are not entitled to minimum wage protection or
overtime compensation. Exempt employees
are, however, covered by equal pay and record-keeping provisions of the Fair
Labor Standards Act (FLSA).
2. Public school employees in this category include,
superintendents, assistant superintendents, supervisors, directors, principals,
assistant principals, teachers and other building-based certified staff.
B. “Covered”
(Non-Exempt) Employees
1. All “non-exempt employees are covered by all
provisions and requirements of the FLSA.
2. Non-exempt employees typically employed by public
schools are custodians, secretaries, cafeteria workers, hall monitors, clerical
support, bus drivers, school nurses (not licensed R. N.), maintenance workers, security
workers, laborers, after-care employees (if primary duty is childcare),
pre-school employees (if primary duty is childcare), and warehouse
workers.
II. Wage and Hour Requirements
A.
Compensable Time
1. Hours Worked.
§
Hours worked includes
all the work an employee is required or
permitted to do by the employer based on
the job hired to perform, or related to the job.
§
Non-exempt
employees must be paid for all hours worked.
§
The reason the
employee works extra hours beyond the required time is not material. It also
does not matter if the hours worked were scheduled.
§
The time
traveled between job sites during normal workday is considered hours
worked.
§
Lunch time (must
be a minimum of 20 minutes), does not count for hours worked. Note: If an employee is given less than 20
minutes for lunch, the lunch time does count for hours worked.
§
If an employee
is asked to run errands during lunch, the time counts for hours worked.
§
If an employee
takes work home to complete, it counts as hours worked.
§
If an employee
arrives early or stays late voluntarily to perform work duties he/she must be
compensated for the extra hours if the employer “suffer or permits” the extra
work.
§
Coffee breaks or
rest periods are considered work hours.
§
Training time
counts for hours worked if required by employer as a condition of employment,
but not if the training is needed to meet certification. The only other
exception is if the following four regulatory criteria is met::
1. Attendance is outside the employee’s regular work
hours.
2. Attendance must be voluntary
3. Training must not be directly related to employee’s
job.
4. The employee performs no production work during
attendance.
B.
Overtime.
§
The employer
must establish a work week comprised of 7 consecutive 24-hour periods (168
hours). Work week does not have to
coincide with the calendar week
§
Each work week
must stand alone
§
Work week hours cannot
be averaged
§
Employer is not
required to pay weekly, but is required by FLSA to set or define the 7 days
work week.
§
If any work week
exceeds 40 hours, overtime
compensation must be paid.
§
The employer and
employee cannot enter into
anti-overtime agreements. The employee
and employer may not enter into an agreement that sets aside the employees
overtime opportunity. This
violates the Fair Labor Standards Act.
§
Overtime pay is
due to an employee after 40 hours in the work week have been exceeded.
§
If employee
works 2 different jobs, the employer may pay a separate rate for each, however,
all hours (combined) worked over 40 in a work week count toward overtime.
C.
Regular Pay Rate
§
Is
determined by dividing the total earnings in the work week by the total hours
worked in the work week.
§
The regular rate
of pay must not be less than the applicable minimum wage rate ($5.25 per hour
for non-exempt employees, unless under age 20, who can receive pay of $4.25 per
hour).
III. Record-Keeping
Requirements
A. Non-Exempt Employees
§
There is no particular order or form required by the Act
§
Main records
required by the FLSA include:
1. The employer must provide employee’s full name,
social security number, etc on employees’ work time or payroll
2. The employee’s home address, zip code, birth date
(under 190, sex and occupation.
3. Set work week (the time of day and beginning day of
the work week)
4. Total hours worked (usually time card, etc),
including overtime
5. The total daily or weekly straight time earning,
excluding overtime
6. Total additions or deductions from wages paid for
each payroll period
7. Total wages paid each pay period, including date of
payment and pay period.
B.
Exempt Employees
§
Employers are
required to keep the same records except those pertaining to overtime
§
Records
regarding posting of notices must be kept
§
Records must be
kept for three years
This requirement applies to all employees and prohibits an employer from the use of gender as a basis for pay differential for the same or similar work, requiring equal skills, abilities and responsibilities.
Note: The
Fair Labor Standards Act also has a Child Labor Division that provides
protection to employees under age 16. For
additional details on the Fair Labor Standards Act, go the following
website: http://www.dol.gov/esa/whd/. The summary presented in this article is by
no means complete on rules, guidelines, or regulations on the Fair Labor
Standards Act (FLSA). Please review the
website for complete details or if any additional information is needed on the
FLSA.
PART
2: OVERVIEW/BACK
Waves
of lawsuits since 1998 have been filed by a Mississippi-based School Litigation
Group against school districts in several southeastern states, including
1. Record keeping.
Employers failed to count all compensable time employees are required to
work, such as coming in early, working late, working through lunch time,
working at home, etc).
2. Failure to pay minimum wage. All work time and all wages must be paid.
3. Failure to pay overtime occurred most in the
following cases:
a. When an employer failed to combine hours worked for
overtime pay for an employee who worked two or more jobs (Example: a custodian
who is also a bus driver). This is
called dual employment.
b. When an employer failed to count all hours worked
(school meetings, mandatory events, PTA meetings, etc.).
c. When an employer misapplied exempt criteria for
employees (Example: If a teacher assistant is hired as the football coach,
he/she is not exempt, since coaching would be still considered instructional
duties like their teacher assistant job).
If an exempt employee works 20 percent of his work hours in activities
that are not essential parts of, or incidental to, his exempt work, he or she
is entitled to overtime if the work exceeds 40 hours during the work week.
The aforementioned issues
are school compliance issues. The
initial FLSA lawsuits were filed against 97 of
1. Overview of the FLSA
2. The importance of filling out accurate time sheets
each day, and signing them along with the supervisor. Note: Falsifying time sheets is a criminal
offense in
3. Ensure that employees are treated fairly.
4. Calculating and
determining overtime pay:
a. Total hours worked in multiple jobs must be combined
for the workweek and may cause overtime pay.
b. Understanding what constitutes “suffered and
permitted to work,” and implications for overtime pay.
c. Make sure bus drivers know the difference between
“route time” and “hours worked.”
d. Non-exempt employees cannot volunteer to work in the
same or similar job for which they receive regular wages. Example:
Bus driver cannot volunteer to drive a sports team to a game). Non-certified
substitutes cannot volunteer to work as bus drivers.
e. Coming to work early, staying late or working at home
to complete work may cause the employer to pay overtime. (Example: If a school secretary calls
substitutes from home and it exceeds the 40 hour workweek, overtime must be
paid). Note: If an employee comes to work outside of the
scheduled work hours, signs in for work, and the total hours worked exceeds 40
(even if the employer did not know or did ask the employee to perform the work
early, late or at home, overtime must be paid).
f.
Meal breaks of
less than 20 minutes are compensable.
g. Working through part or your entire meal break
(employee must have a minimum of 20 minutes of uninterrupted meal time, or
overtime hours are incurred).
h. Working after-or-before school programs may cause
overtime pay.
The burden of proof is on
the employer to show that employees were properly paid overtime. Accurate record keeping is also the
responsibility of the employer. The two
major areas of compliance violation were in the proper payment of overtime
(Hours worked and dual employment issues), and the accuracy of record keeping. There is a two-year statute of limitation for
overtime violations of the FLSA.
However, if the employee can prove that the employer willfully violated
the FLSA, the statute of limitation on overtime can go up to three years.
The FLSA allows for damages
to include not only the overtime back pay, but also an equal amount of pay for
damages. In addition, employees may also
request attorneys’ fees as part of their lawsuit.
§
The actions (as
related to FLSA) being taken by school districts in North Carolina are not to
penalize or punish non-exempt public school employees, but to provide education
on the FLSA to both the employers and employees, so violations will not
occur. Public school employers are also
being asked to ensure that employees are paid properly and treated fairly. Teacher Assistant members of the North
Carolina Association of Educators (NCAE) have expressed concerns regarding the defining
of their work week as forty hours (School districts may or may not require that
teacher assistants work 40 hours).
However, by defining the workweek as 40 hours, any time worked in the
work week up to 40 hours cannot be considered as overtime. Therefore, if teacher assistants are asked to
attend meetings, or perform other job related work, hours up to 40 are
considered straight time, not overtime. Note: If an employees’ work week is not
defined as a 40 hour work week (Previously 37.5 for teacher assistants in
The School Litigation Group,
to date, has not gotten heavily involved in taking legal action in