Quiz 7 FLSA

Pre assignment testing

Pre-assignment or pre-access testing is when customers require you to drug-test employees before they allow access to their premises.

Employer-Furnished Facilities

The reasonable cost or fair value of board, lodging, or other facilities customarily furnished by the employer for the employee's benefit may be considered part of wages.

Griswald vs. Connecticut

the Supreme Court ruled that a state's ban on the use of contraceptives violated the right to marital privacy

Comp time(compensatory time)

when an employee works beyond their regular work hours and is allowed to take time off another day. Comped time 1.5 hours the number of ot they worked. state and government cap is hours. police and public service workers are 480 hours.

Criminal Prosecution

· Employers who have willfully violated the law may be subject to criminal penalties, including fines and imprisonment.

Computer Related Field Exemptions:

(1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications; (2) The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; (3) The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or (4) a combination of the aforementioned duties, the performance of which requires the same level of skills. Finally, the 1992 regulations stated that "While such employees commonly have a bachelor's or higher degree, no particular academic degree is required for this exemption."

Common Law Torts

1. Intrusion into Seclusion 2. Public Disclosure of Private Facts 3. Publication in a false light

Fair Labor Standards Act (FLSA)

Federal law that establishes a minimum wage and requirements for overtime pay and child labor. Part of Franklin D. Roosevelt National Industrial Recovery Act during the Great Depression.

Drug Testing Best Practices

Have a written policy. Keep consistent disciplinary actions. Third party drug testing company recommended. Maintain results/records in separate employment file.

Can employer terminate employee over social media post?

If harassing in nature. It's illegal for an employee to be fired for a post about working conditions, whether it's pay, hours, assignments, difficult supervisors, dress code, or any other issue. So employers shouldn't try to restrict workers' freedom of speech or retaliate if there's a post they don't like

Can an employer ask about a medical condition when applying for job?

No until the preemployment offer has been made. Then the employer can conduct a medical examination.

Exempt employees

Managers, outside salespeople, and any other employees not covered by the FLSA requirement for overtime pay.

Can an employer ask an employee about an arrest record?

No

Can an employer ask an employee if they have filed for worker's comp?

No

Random Testing

Random testing is unpredictable, and therefore highly effective. Random alcohol testing is an issue under the ADA and not recommended

Breaks for Nursing Mothers

Section 7(r) requires covered employers to provide break time for nursing mothers. Break time must be provided for one year after the child's birth. Employers must provide space, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public. Only employees who are not exempt from the FLSA's overtime pay requirements are entitled to break times to express milk. Employers with fewer than 50 employees are not subject to the requirement if compliance would impose an undue hardship on the employer. Employers are not required to compensate nursing mothers for breaks taken for the purpose of expressing milk.

Can an employer require a drug test?

There is no comprehensive federal law that regulates drug testing in the private sector, leaving the issue open to state regulation. Pre-employment testing is very popular, she said. But it should follow a conditional offer of employment. Pre-offer testing is not recommended because it could violate the Americans with Disabilities Act (ADA),

Student Learners

Under Section 14(a) of the FLSA, employers may pay "student learners" 75% of the basic minimum wage. Student learners are high school students who are (1) at least 16 years old (or 18 if employed in an occupation that the Secretary of Labor has declared to be particularly hazardous for the employment of youth), (2) are receiving instruction in an accredited school, college, or university, and (3) are employed part-time by an employer as part of a vocational training program

Can an employer search an employee?

Yes as long as it is not on the basis of sex or race.

Intrusion into Seclusion

a. To prove a prima facie case of intrusion into seclusion, the plaintiff must show the following: 1. the employer intentionally intruded in to a private area. 2. the plaintiff was entitled to privacy in that area. 3. the intrusion would be objectionable to a person of reasonable sensitivity. 2. Some examples of intrusion into seclusion cases include: a. Requiring information from an employee through polygraphs, illegal medical exams, illegal psychological exams. b. Videotaping employees in the bathroom or in the locker room while changing. c.Hiring a private investigator

Nonexempt employees

employees covered by the FLSA requirements for overtime pay

Child Labor

non agriculture age requirement is 16 minimum. Agriculture age requirement is 14 minimum. The FLSA includes a number of exceptions to the general minimum age requirements of the act. Under a parental exemption, a child of any age may be employed by his or her parent (or person standing in the place of a parent) in any occupation in a business, including a farm, owned or operated by the parent. But, youth under 18 cannot be employed in mining or manufacturing, including in a business owned or operated by a parent. Youth ages 12 and 13 can work in agriculture with the written consent of their parents on a farm where a parent (or person standing in the place of a parent) is also employed.

Administrative Procedures

· The Department is authorized to supervise the payment of unpaid minimum wages and/ or unpaid overtime compensation owed to any employee(s). · In lieu of litigation, the Department may seek back wages and liquidated damages, through settlements with employers. · Civil money penalties may be assessed for child labor violations and for repeat and/or willful violations of FLSA minimum wage or overtime requirements.

FLSA threshold

$35,568 annually or $684 per week.

Publication in a false light

. To prove a prima facie case of Publication in a False Light, the plaintiff must show 1. Publication of facts that would place the employee in a false light before the public. 2. the false light would be highly offensive to a reasonable person 3. The person providing the information had knowledge of or recklessly disregarded the falsity of the publication. b. Voluntary consent to the publication equals a complete defense to aa false light action. c. The general public knows the false light. d. Damage is to the employee's inability to be left alone with mental and emotional suffering.

Record Keeping:

1. personal information, including employee's name, home address, occupation, sex, and birth date if under 19 years of age; 2. hour and day when workweek begins; 3. total hours worked each workday and each workweek; 4. total daily or weekly straight-time earnings; 5. regular hourly pay rate for any week when overtime is worked; 6. total overtime pay for the workweek; 7. deductions from or additions to wages; 8. total wages paid each pay period; and 9. date of payment and pay period covered.

FLSA does not regulate:

1. vacation, holiday, severance, or sick pay; 2. meal or rest periods, holidays off, or vacations; 3. premium pay for weekend or holiday work; 4. pay raises or fringe benefits; or 5. a discharge notice, reason for discharge, or immediate payment of final wages to terminated employees.

Deductions

Deductions made from wages for such items as cash or merchandise shortages, employer-required uniforms, and tools of the trade, are not legal to the extent that they reduce the wages of employees below the minimum rate required by the FLSA or reduce the amount of overtime pay due under the FLSA.

Elements of Defamation Lawsuit

Each state has its own defamation law, which sets forth what employees must prove to win their cases. In general, an employee must prove these elements: (1) the employer made a false statement of fact about an employee, (2) the statement was published (i.e., it was actually transmitted to somebody else), (3) the employer knew or should have known of the falsity of the statement, (4) the statement wasn't privileged, and (5) the employee suffered actual harm because of the statement. The first three elements provide a threshold for defamation lawsuits. Statements of opinion and true statements cannot be the basis of a defamation claim; truth is a complete defense to a defamation lawsuit. Similarly, a lie about an employee that is made in an employer's notes for him or herself and not "published" to another person is unlikely to be considered defamation

Enterprises Engaged in Interstate Commerce

FLSA covers if annual sales are at least $500k. Although enterprises that have less than $500,000 in annual sales or business done are not covered by the FLSA, employees of these enterprises may be covered if they are individually engaged in interstate commerce. These employees may travel to other states for work, make phone calls or send emails to persons in other states, or handle records that are involved in interstate transactions

Exemptions

The FLSA exempts certain employers and employees from the minimum wage, overtime pay, or child labor standards of the act. • Certain employees in computer-related occupations are exempt from both the minimum wage and overtime standards of the FLSA if they meet an hourly wage or weekly salary test and a job duties test. Domestic service workers who provide companionship services in private homes are exempt from both the minimum wage and overtime requirements of the FLSA. provided to executive, administrative, or professional (EAP) employees; individuals employed at retail stores that did not have interstate operations, and agricultural employees.

Overtime

The FLSA requires employers to pay at least time-and-a-half to covered, nonexempt employees who work more than 40 hours in a week at a given job. • The FLSA allows covered, nonexempt state and local government employees to receive compensatory time off (comp time) for hours worked over 40 in a workweek. Comp time is time off with pay in lieu of overtime pay.

Basic Minimum Wage

The FLSA requires employers to pay covered, nonexempt employees at least the minimum wage.

Domestic Aid and Companionship Workers

Under Section 13(a)(15) of the FLSA, domestic service workers who provide companionship services in private homes are exempt from both the minimum wage and overtime standards of the act. Section 13(b)(21) of the act exempts from overtime, but not the minimum wage, domestic service workers who provide live-in domestic services. 1. their cash wages from one employer in calendar year 2010 are at least $1,700 (this calendar year threshold is adjusted by the Social Security Administration each year); or 2. they work a total of more than 8 hours a week for one or more employers.

FT Students

Under Section 14(b) of the FLSA, employers may pay certain full-time students 85% of the basic minimum wage. The subminimum wage for full-time students applies to students employed by retail or service stores, in agriculture, or by institutions of higher education

Public Disclosure of Private Facts

a. To prove a prima facie case of public disclosure of private facts, the plaintiff must show: 1. There was an intentional or negligent public disclosure 2. Of private matters 3. Such disclosure would be objectionable to a reasonable person of ordinary sensitivity b. The information disclosed in this tort must not already be public. 1. Therefore, in Pemberton v. Bethlehem Steel Corp. posting of an employee's criminal record on a employer's bulletin board at work would not constitute public disclosure of private facts because criminal records are already available to the public. 2. A manager at Burger King posts a notice on the entrance doors that the janitor at his Burger King has been diagnosed with AIDS. He want a public reaction in order to force the man the quit his job. This meets the elements of public disclosure of private facts. Any medical records should be kept private and separate. Information should not be communicated to 3rd parties.

Computer Professional vs. Skilled Computer Worker

are exempt from the minimum wage and overtime standards of the FLSA if they meet the job duties test provided in regulations and, if they are paid an hourly wage, are paid at least $27.63 an hour or, if they are paid a salary, are paid at least $455 a week.48 The same duties tests apply to both salaried and hourly computer employees.49 Skilled computer workers are not necessarily exempt from the minimum wage or overtime requirements of the FLSA. Employees engaged in the manufacture or repair of computer hardware are not exempt. Employees whose work is highly dependent on the use of computers and computer software programs (e.g., engineers, drafters and others skilled in computer-aided design software), but who are not primarily engaged in computer systems analysis and programming, are not exempt computer professionals.

FLSA threshold

minimum salary employers must pay employees for them to be exempt from overtime wages. Beginning January 1, 2020, the salary threshold increases, making a number of previously exempt employees nonexempt. The new FLSA salary threshold is $35,568 annually or $684 per week.

Ban the Box

policy that asks or mandates that potential employers eliminate from initial hiring applications the check box that asks individuals if they have a criminal record

subminimum wage

A wage below the minimum wage that employers may pay certain people, such as students placed in a job as part of a vocational or other educational program. • Tipped employees may be paid less than the basic minimum wage, but their cash wage plus tips must equal at least the basic minimum wage of $7.25.Employers may pay special minimum wages (SMWs) to workers with disabilities. The purpose of the SMWs is to provide persons with disabilities the opportunity to work.

Workers with Disabilites

Employers must receive certificates from the Wage and Hour Division (WHD) of DOL that authorize the employers to pay SMWs.23 WHD issues certificates to four types of employers: work centers, hospital or residential care facilities, businesses, and School Work Exploration Programs (SWEP). Work centers (also called "community rehabilitation programs" and "sheltered workshops") provide employment, training, and rehabilitation services. Hospital or residential care facilities employ "patient workers," who are employed persons who also receive treatment or care. A business establishment that employs workers with disabilities at SMWs must receive a certificate from WHD. Under SWEP, schools place students with disabilities at work sites in the community. In order to pay a disabled worker less than the basic minimum wage, the employee's disabilities must impair his or her productive capacity in the job being performed. For disabled workers paid an hourly wage, employers must review the workers' productivity, and adjust their wages accordingly, at least every six months.

Drug testing government (public) employees

It is well settled that drug testing by government employers constitutes a "search" under the Fourth Amendment to the United States Constitution. Probable cause and a warrant are generally required for government searches, although the Supreme Court has carved out exceptions.[1] Even in those instances where testing is permitted under the Fourth Amendment, the due process clause and the equal protection clause of the Constitution prohibit certain practices and procedures in connection with the testing of employees. Local government employers can be held liable for monetary damages when an employee's constitutional rights have been violated as a result of drug testing. Testing of applicants for government jobs is allowed only for the following occupations: (1) law enforcement officers; (2) correctional officers; (3) firefighters; and (4) occupations where testing is required by federal law

Enforcement through Legal Remedies:

The FLSA allows the Department of Labor ("Department") or an employee to recover back wages and an equal amount in liquidated damages where minimum wage and overtime violations exist. Generally, a 2-year statute of limitations applies to the recovery of back wages and liquidated damages. A 3-year statute of limitations applies in cases involving willful violations. Remedies may be recovered through administrative procedures, litigation, and/or criminal prosecution.

Outside Salesperson Exemption:

To qualify for the exemption for outside sales employees, an employee must meet both of the following job duties tests: • The employee's primary duty must be making sales (as defined in the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer;41 and • The employee must be customarily and regularly engaged away from the employer's place or places of business.42

Tipped workers

Under the FLSA, an employer may pay a tipped worker a minimum cash wage of $2.13 if the employee receives at least $5.12 an hour in tips (for a total hourly wage of $7.25).20 Employers may claim up to $5.12 in tips as a tip credit. However, if a tipped employee receives less than $5.12 an hour in tips, the employer must make up the difference with a higher cash wage. For example, if a tipped employee receives $3.00 an hour in tips, the employer must pay the employee a cash wage of at least $4.25 an hour.

New Hires Under Age 20

Under what is known as the "youth opportunity wage," employers may pay a minimum wage of $4.25 an hour to employees under the age of 20 for their first 90 consecutive calendar days of employment.25 Hiring youth at a subminimum wage cannot displace other workers. After 90 consecutive days of employment or when the worker reaches age 20, whichever comes first, the employee must be paid at least the basic minimum wage.

Enforcement through Investigation:

WHD enforcement of the FLSA is carried out by investigators stationed across the country. As WHD authorized representatives, they conduct investigations and gather data on wages, hours, and other employment conditions in order to determine compliance with the law regardless of workers' immigration status. Where violations are found, they will recommend changes in employment practices to bring an employer into compliance.

Reasonable Suspicion

also known as "for cause" testing, "is the most common found in workplaces,". Reasonable suspicion testing needs to be based on objective facts relating to a particular individual that would suggest to a reasonable person that the individual is under the influence in violation of a company policy. The timing of reasonable suspicion testing is critical and should be conducted within eight hours for alcohol and within 32 hours for drugs. Employer cannot test under reasonable suspicion unless a policy is in place prior.

Equal Pay Provision

prohibit sex-based wage differentials between men and women employed in the same establishment who perform jobs that require equal skill, effort, and responsibility and which are performed under similar working conditions. These provisions, as well as other statutes prohibiting discrimination in employment, are enforced by the Equal Employment Opportunity Commission.

Defamation Per Se

remarks considered to be so harmful that they are automatically viewed as defamatory. For example, statements by an employer that a former employee lacks the necessary skills for his profession or that she committed a crime are usually considered defamatory per se. Each state's law defines what types of statements, if any, constitute defamation per se.

Post Accident Testing

should only focus on nontrivial, serious accidents and is particularly suited for safety-sensitive employees, Kaplan said.

The Constitution and Privacy in the workplace

the Constitution provides protection only against government agencies, not private entities. So keep this in mind. There is a difference between: 1. Government employees and 2. Private Employees As a general rule, then, your rights in the workplace can have up to three different levels of protection. Employees in the private sector who do not have a union or employment contract generally have the least protection, and must rely mainly on any state and federal laws governing workplace privacy. Private employees with a union can rely on their union and its contract for possible additional protections.(1) Finally, government employees may further be able to advance constitutional claims for violations of their privacy.

Litigation Procedures:

· The Department may file suit on behalf of employees for back wages, an equal amount in liquidated damages, and civil money penalties where appropriate. · The Department may seek a U.S. District Court injunction to restrain violations of the law, including the unlawful withholding of proper minimum wage and overtime pay, failure to keep proper records, and retaliation against employees who file complaints and/or cooperate with the Department. · The Department may seek an order for payment of civil money penalties from a U.S. Department of Labor Administrative Law Judge where appropriate. · An employee may file a private suit to recover back wages, an equal amount in liquidated damages, plus attorney's fees and court costs. In such a case, the Department will not seek the same back wages and liquidated damages on that employee's behalf. · The FLSA provides that DOL may seek a U.S. District Court order to prevent the shipment of the affected goods.

Exemption Qualification for Executive Employees:

• The employee's primary duty "is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof"; • The employee "customarily and regularly directs the work of two or more other employees"; and • The employee "has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight."38

Exemption Qualification for Administrative Employees:

• The employee's primary duty "is the performance of office or nonmanual work directly related to the management or general business operations of the employer or the employer's customers;" and • The employee's primary duty "includes the exercise of discretion and independent judgment with respect to matters of significance."39

Exemption Qualification for Professional Employees:

• The employee's primary duty is the performance of work: "Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction;" or "Requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor."40