Employment Law Chapter 14

Wages paid on commission and bonuses are due according to the terms of?

1. An agreement between the EE and ER 2. An applicable collective bargaining agreement.

MINIMUM WAGE..

Employees who are covered by the FLSA are entitled to be paid at least the federal minimum wage, as well as time and one-hale their regular rates of pay for all hours over 40 worked in a workweek, unless an exemption applies.

What is a "Tipped employee"

If their occupation is one where employees customarily and regularly receive more than $30 per month in tips.

What does FLSA not apply to?

Independent Contractors or to principal agency relationships.

An employer shall pay wages to each employee who is exempt from the overtime pay provisions of the FLSA of 1938 at least once a ???

MONTH

Administrative Exemption is?

Makes BIG decisions for a company. n employee fits into this category when the employee: --has the primary duty of performing office or non-manual work directly related to the management or general business operations of the employer or its customers. --in the exercise of the primary duty, regularly exercised discretion and independent judgment with respect to matters of significance. Administrative tasks take up to 50 percent of the employees time.

Williams v. Phillips Petroleum Co..Does an employer have a WARN obligation if a "mass layoff" occurs over multiple, non-contiguous employment sites?

NO WARN notice was required for employees at locations where "mass layoffs" did not occur.

An employer shall pay wages to an employee other than an employee covered by Subsection A at least

TWICE a month.

Under the FLSA, the work week is

a fixed and regularly period of time--seven 24 hour periods or 169 hours per week. STANDARD: 12:01am Sunday - 12 mid. saturday.

What is a piece rate?

fixes a wage payment on each completed unit of work. Example: a seamstress who is paid based upon the number of hems that she sews, and a lumberjack who is paid bases upon the number of trees that he harvests. DIFFERENT from a commission arrangement.

Executive Exemption is.

for private employers and applies if all elements are met--1. the employee is salaries at a rate not less than $455 per week 2. the employees primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision. 3. the employee must customarily and regularly direct the work of two or more employees. 4. the employee must have the authority to Fire or Hire other employees.

What is the Family Business Exception?

if the only employees are its owner or other member of the owners immediate family, the FLSA DOES NOT APPLY.

Commission Arrangement is what?

involves the employee earning a portion of a sale the he/she was responsible for generating. must also be equal to or exceed minimum wage.

What is the Portal to Portal Act?

it was made in 1947 and amended in to the FLSA and addressed when overtime is earned and when the workweek begins. it excludes the following time as compensable by the ER: --Traveling to and from the place of employments --preliminary or concluding activities (donning and doffing)

Fair Labor Standards Act of 1938 (FLSA)

its a very complex statute TWO requirements: 1. There must be an ER-EE relationship 2.the employers activités must meet an in commerce requirement.

What is a Piece Rate Employee?

the average hourly earnings during the workweek must be at least at or above the federal minimum wage.

How do you determine if a salaried employee is receiving at least the statuary minimum hourly rate of pay?

the regular hourly rate is determined by dividing the employees total earnings for the workweek by the total number of hours worked during the workweek.

What is blacklist under the Texas statute mean?

to place on a book of list or publish the name of an employee or an individual, firm, company, or corporation who was discharged or who voluntarily left that employment, intending to prevent the employee from engaging in or securing employment of any kind with any other person, in either a public or a private capacity.

What is the minimum is?

$7.25 per hour. States can require you to pay more and be generous about overtime. TEXAS does not have a higher minimum wage than the FLSA.

FLSA excludes the following compensation from the regular rate of pay calculation.

--Gifts --Expense reimbursements --Discretionary bonuses (like christmas bonus) --Profit Sharing --Retirement and Insurance plans --overtime premium payments --stock options

What are the major Provisions of WARN?

--Plants closing. --Layoffs --employment losses triggering the notice.

FLSA does not govern these

--Vacation, holiday, severance, or sick pay. meal or rest periods --premium pay for weekend or holiday work --discharge notices, reasons for discharge or the immediate payment of FINAL wages to terminated employees. (tax pay day statute) --the limit of the number of hours to be worked in a day. --fringe benefits.

Under the FLSA children...

--under the age of 14 are generally not employable. -- children age 14 or 15 may be employed are school in NON hazardous activities --children age 16 and 17 can work at any time in non-hazardous jobs. They cannot operate an elevator, climb a ladder, or operate a baler.

The WARN act Applies to?

-Employers of more than 100 employees -for profit and nonprofit employees. -employers who are ordering a plant closing or mass layoff affecting 50 OR MORE employees.

There are Five Exemptions that eliminate the requirement to pay overtime..what are they?

1. Executive Exemption 2. Administrative Exemption 3.Professional Exemption 4. Computer Related Exemption 5. Outside Sales Exemption

Certain employees are EXEMPT from the payment of overtime. who are they?

1. Executive, administrative, or professional positions. (Manage 2 people, earn $450 per week) 2. Computer Professionals 3. Outside salesperson.

What two things determine an employers determination to discharge an employees.

1. Seniority and 2. Performance Evaluations. IT MUST operate in an nondiscriminatory fashion or it will violate Title VII.

The employer can claim a "tip credit" only if

1. The employer informs each tipped employee about the allowance and how it is calculated. 2.The employer can document that the employee received at least enough tips to bring the total wage paid to the employees to at least the minimum wage rate. 3.All tips are retained by the employee and are not shared with the employer to other employees unless through a valid tip pooling arrangement.

What are three areas of the FLSA application that has led to much litigation in years?

1. determining who is a covered employee 2. determining the hours work (may receive hourly or commission. 3. calculating the rate of pay for overtime compensation.

What two conditions constitute a MASS LAYOFF

1. it must be a reduction in force (RIF) 2. the reduction must result in an "employment loss" at a single site that affects at least 50 full time employees who comprise at least 50% of the full-time workforce.

Hours that are NOT Compensable.

1.If an employee is on duty for less than 24 hours, sleeping time is not compensable. --If the employee is on duty for 24 hours or more, the employer and employee may agree to exclude a sleeping period of no more than 8 hours.

Overtime Compensation--->

All Non-exempt employees must receive overtime after 40 hours worked per work week at a rate of at least one and one-half times the hourly rate.

Professional Exemption is?

Applies if the primary duty of the individual is the performance of work requiring knowledge of an advances type in a field of science or learning. --Pertains to individuals who have been issued licenses to practice a profession by a state licensing authority. NOT paralegals, but law. Medical, dental. --Also applies to individuals whose work requires invention, imagination, or originality, or talent in an Artistic or creative matter.

Outside Sales Exemption

Applies to those whose primary duty is making sales for compensation paid by customers. --must be regular engaged away from the employers place of business. --theres is no required minimum compensation the person is to receive if he or she is engaged as outside salesperson.

FLSA applies to

BOTH union and NON Union work places. Employees of not-for-profit and religious entities (as well as commercial businesses)

The work an employee works is

COMPENSABLE. Example: hours worked by an on call individual. if an employes are required to eat at desks or machines.

What are salaried members under the FLSA called?

Exempt.

What does FICA stand for?

Federal Insurance Contributions Act. --employers and employees both pay Social Security and Medicare taxes.

What is FUTA?

Federal Unemployment Tax Act -- employers may for unemployment insurance for their workers.

What happens when in a single work week an employee performs two different functions at two different rates of pay?

His/her wage rate for that week is the weighted AVERAGE of the two wage rates.

Does the FLSA require employers to pay employees for time spent walking to and from stations that distributed employer-required safety equipment?

Putting on safety equipment qualified as a "Principal Activity" compensable under the FLSA. Any time spent before the putting on of the safety equipment was not compassable because it is a PRELIMINARY ACTION under the Portal to Portal Act.

An employer shall pay in full an employee who is discharged from the employment no later than...

SIX DAYS after the date the employee is discharged.

Patel v. Quality Inn South...Are undocumented alienist entitled to the protections of the FLSA?

Since congress does not include undocumented workers from coverage, those workers should be INCLUDED within the Act's protections.

Tony & Susan Alamo Foundation v. Secretary of Labor.....Do the commercial activities of a non-profit business that compensates workers with non-cash benefits cause the business to be subject of FLSA?

The Supreme Court found that the foundation's commercial activities with a "common business purpose" were not beyond the reach of the FLSA. The foundations compensation of its workers was SUBJECT to the requirements of the FLSA.

Was a worker who engaged in responding to customer requests and exercised some minor decision-making entitled to overtime wages?

The appellate court concluded that Cash's performance of his duties required managerial discretion. These duties qualified him for the administrative overtime exemption under the FLSA. He was NOT entitled to any overtime pay.

What constitutes a reasonable basis under the internal revenue code to classify a worker as an independent contractor.

The court held the employer had a reasonable basis under Section 530(a)(a) for NOT treating its nurses as employees.

Under FLSA

The employment relationship is tested by "economic reality rather than Technical Concepts.

What does WARN stand for?

Worker Adjustment and Retraining Notification Act. which prohibits employers from ordering a plant closing or mass layoff without a 60 day written notice to its affected employees. the purpose of warn is to give effected employees and their families sufficient time to adjust to the loss of employment.

Computer Related Exemption is?

related to those employees whose primary duty is: --the application of systems analysis techniques and procedures, including consulting with users to determine hardware, software, or system specifications Such a person must receive a guaranteed salary of at least $455 per week or an hourly rate of not less than $27.63 an hour.

What is the Walsh Healey Act of 1936?

requires that government contractors pay overtime for work in excess of 8 hours in a day and set their minimum wages to be in line with the prevailing wage in the area. THESE LAWS ONLY APPLY YO THE FEDERAL GOVERNMENT AND ITS CONTRACTORS NOT PRIVATE EMPLOYERS.

What is the Davis-Bacon Act of 1931?

requires the paying of prevailing wages on federal construction projects. THESE LAWS ONLY APPLY YO THE FEDERAL GOVERNMENT AND ITS CONTRACTORS NOT PRIVATE EMPLOYERS.

Child labor laws are mostly?

state laws.

What does the Texas FLSA statute largely mirror?

the Federal FLSA.