MADM 715 Final

Basic Minimum Wage

$7.25 an hour, FLSA requires employers to pay covered, nonexempt employees at least the minimum wage . 94.8% of employees are paid more than the minimum wage 19 states and the District of Columbia have minimum wage rates that are higher

Computer employees continued

(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.

Safe Harbor

(1) clearly communicated policy prohibiting improper deductions and including a complaint mechanism, (2) reimburses employees for any improper deductions, and (3) makes a good faith commitment to comply in the future, the employer will not lose the exemption

Defamation:

(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 courts have generally required government employers to demonstrate a connection between the criminal offense and the person's job.

1. Employees do not have an absolute right to privacy in their workplace. 2. It is not a breach of an employee's right to privacy for an employer to ask with whom the employee lives. 3. In the private sector, the Constitution does not protect employees' right to be free from unreasonable searches and seizures. 4. Without constitutional protection, employees are safeguarded to some extent by common law protection against invasion of privacy. 5. Though an employee may give information to an employer, the employer must still use the information only for the purpose for which it was collected.

Student Learners

75% of the basic minimum wage. Student learners are high school students: (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 as long as the students are enrolled in the vocational education program must obtain certificates from DOL authorizing them

Fee Basis

Administrative, professional and computer employees may be paid on a "fee basis" rather than on a salary basis. If the employee is paid an agreed sum for a single job, regardless of the time required for its completion, the employee will be considered to be paid on a "fee basis." A fee payment is generally paid for a unique job, rather than for a series of jobs repeated a number of times and for which identical payments repeatedly are made.

Conviction

Cant be asked if ever filed for workers comp or arrest record ( only exception is for law enforcement agency positions "or positions related" to such agencies.) doesn't prevent employers from inquiring about any convictions

Blue Collar exemptions

FLSA-covered, non-management employees in production, maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers are entitled to minimum wage and overtime

Deductions From An Employee's Predetermined Salary,

I.e., because of the operating requirements of the business, that employee is not paid on a "salary basis." · Deductions from pay are permissible when an exempt employee: is absent from work for one or more full days for personal reasons other than sickness or disability · not required to pay the full salary in the initial or terminal week of employment, or for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act.

hazardous occupations.

In agriculture, youth between the ages of 14 and 15 may work in certain hazardous occupations if they are student learners. Minors ages 14 and 15 can operate tractors or other machinery if they hold a certificate of training from a 4-H or vocational agriculture training program.

Child Labor

In nonagricultural occupations, the act sets a general minimum age for employment of 16. In agricultural occupations, the general minimum age to work is 14.

Invasion of Privacy is not just one legal cause of action but four:

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. 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 Publication in a False Light a. 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.

480 hours of comp time

Law enforcement, fire protection, emergency response personnel, and employees engaged in seasonal activities may accrue up to

Illegal

Questions that ask you to denote your gender, race, birth date, whether you have a disability or have ever been treated for mental illness, and comparable types of inquiries

Overtime

Started at 44 hours in the 30's, changed to 40 in '40. Purpose is to reduce unemployment by encouraging employers to hire more workers, rather than requiring current employees to work more than 40 hours Pay at least time-and-a-half to covered, nonexempt employees who work more than 40 hours.

Griswold v. Connecticut

The Supreme Court first noticed the right to privacy in the case,. the Supreme Court ruled that a state's ban on the use of contraceptives violated the right to marital privacy

Defamation Per Se

The law presumes such statements will cause harm, and the plaintiff does not have to prove harm in order to recover.

Drug Testing

There is no comprehensive federal law that regulates drug testing in the private sector, leaving the issue open to state regulation Drug testing is a mandatory subject of collective bargaining. "If you've got a union in place, you can't just start drug testing unless you've negotiated with the union," · Employers not required by law to test have a range of choices as to which types of tests to conduct. pre-employment, pre-assignment, reasonable suspicion, random and post-accident. · Pre employment should follow a conditional offer of employment. · alcohol testing is not recommended because it is considered medical testing under the ADA · Reasonable suspicion testing, also known as "for cause" testing, "is the most common found in workplaces · 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 . Unless there are "special needs beyond the normal need for law enforcement" which are sufficiently compelling to overcome the individual's privacy interests, a warrant and probable cause are required.

expunged records of arrests of convictions

are now considered confidential and no longer part of the public record (unless law enforcement, court order)

employees in computer-related occupations

are also exempt from both overtime and the minimum wage if they meet an hourly wage or weekly salary test and a job duties test.

Bona fide executive, administrative, and professional employees

are exempt from both overtime and the minimum wage if they meet both a salary test and a job duties test.

Domestic service workers who provide companionship services in private homes

are exempt from both overtime and the minimum wage.

Computer-related occupations Domestic service workers who provide companionship services unless employed by a third party. (Overtime pay would be extended to live-in for third party)

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

Tipped employees

are individuals engaged in occupations in which they customarily and regularly receive more than $30 a month in tips. Allows tips to be pooled o the employer must make up the difference with a higher cash wage o Seven states and Guam do not allow employers to claim a tip credit

American Samoa and the Commonwealth of the Northern Mariana Islands (CNMI)

are lower than in the continental United States.

testing without a warrant permissible in three instances

· 1) customs officers involved in front-line drug interdiction; (2) customs officers who carry firearms; and (3) train operators where a documented problem with drug/alcohol related accidents existed in the industry

Illegal

employers may ask job applicants to sign a consent form giving the employer unrestricted access to medical, school, employment and/or criminal records that pertain to the applicant

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 days, after that they must be paid minimum wage provide employment opportunities to young persons, especially disadvantaged youth

Full-Time Students

employers may pay certain full-time students 85% of the basic minimum wage applies to students employed by retail or service stores, in agriculture, or by institutions of higher education. does not impose an age limit

Only people working for local, state, or the federal government

enjoy certain constitutional rights in the employment setting

Employees in Computer-Related Occupations

exempt from overtime and the minimum wage certain employees in computer-related occupations While such employees commonly have a bachelor's or higher degree, no particular academic degree is required for this exemption. The minimum hourly wage for computer professionals was fixed at $27.63 an hour · knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study · knowledge of an "advanced type" was knowledge that generally could not be attained with only a high school degree held an "academic degree · computer systems analysts, computer programmers, software engineers, and other similarly skilled professional workers" to qualify as exempt executive, administrative, or professional employees occupations if they were paid on an hourly wage that was at least six-and-a-half times the basic federal minimum wage.

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.does not provide wage payment or collection procedures for an employee's usual or promised wages or commissions in excess of those required by the FLSA

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 Private employees with a union can rely on their union and its contract for possible additional protections.

A governmental employer

has less freedom to search employees because the public employee is protected from unreasonable searches and seizures under the Fourth Amendment to the U.S. Constitution (handbags and briefcases are covered, desks aren't)

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 (Department of Transport or required for the continued receipt of federal funds

Compelled defamation

is a tort that is gaining recognition as a viable cause of action by an increasing number of states. The claim usually arises in employee termination cases, where the plaintiff is compelled to repeat the defamatory reason given by the employer for the termination decision significant damage award, including damages for loss of reputation as well as punitive damages.

A Private Employer

is free to search you, your desk, your locker, and other belongings

Salary Basis-

means an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequent, basis. · Predetermined amount cannot be reduced because of variations in the quality or quantity of the employee's work · must receive the full salary for any week in which the employee performs any work, regardless of the number of days or hours worked. do not need to be paid for any workweek in which they perform no work

The employee's disabilities

must impair his or her productive capacity in the job being performed, commensurate to the worker's productivity worker's productivity relative to the wages and productivity of experienced workers who are not disabled

Comp Time in Lieu of Overtime Pay

nonexempt state and local government employees to receive. Time off with pay in lieu of overtime pay employer and employees must agree that the employer will provide

not covered by the FLSA

include individuals who are elected to state or local government offices and members of their staffs, policymaking appointees of elected officeholders of state or local governments, employees of legislative bodies of state or local governments, immediate family members of an employer engaged in agriculture, persons who volunteer their services to a state or local government persons who volunteer their services to a private, nonprofit food bank and who receive groceries from the food bank.

cant

intent to harass a person engaged in union activities may be an unfair labor practice prohibited by federal law union contract may limit the employer's right to search

· four types of employers swc:

o work centers, o hospital or residential care facilities, o businesses, and o School Work Exploration Programs (SWEP)

improper deductions

particularly as compared to the number of employee infractions warranting deductions; the time period during which the employer made improper deductions; the number and geographic location of both the employees whose salary was improperly reduced and the managers responsible; and whether the employer has a clearly communicated policy permitting or prohibiting improper deductions. If an "actual practice" is found, the exemption is lost during the time period of the deductions for employees in the same job classification working for the same managers responsible for the improper deductions. Isolated or inadvertent improper deductions will not result in loss of the exemption if the employer reimburses

exemptions also do not apply

police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees, regardless of rank or pay level,

Banning the box

prohibits the employer from asking employees or applicants about arrest or conviction record

Fair Labor Standards Act (FLSA

provides workers with minimum wage, overtime pay, and child labor protections. Created by Franklin D Roosevelt in '37 after the great depression known as the new deal

Creative Professional-

salaried paid 455/week primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor

Special Industry Committees (SICs)

set minimum wage rates by industry in Puerto Rico and the Virgin Islands. 1989, Congress enacted legislation that eliminated the

ADA

specifically bans all pre-employment questions relating to medical conditions and disabilities until a conditional offer of employment is made. after an employment offer has been made that an employer may require an applicant to undergo a medical examination or respond to medical inquiries final offer of employment may be conditioned on the results of those tests, the offer can be withdrawn only if the medical results indicate that the applicant is no longer qualified to perform the job even if he or she were given reasonable accommodation

240 hours of comp time

state and local government employees may accrue up to

The use of Global Positioning System (GPS)

there are no federal or state laws prohibiting the practice.

Highly Compensated

to $147,414 a year

Nonexempt state and local government employees

to receive compensatory time off (comp time) for hours worked over 40 (in lieu of overtime pay)

For certain jobs, state (and sometimes federal) law requires an applicant

to undergo a criminal background check. Fingerprinting is legal Under certain circumstances. Private Employers otherwise generally have great discretion in taking employment actions based on past criminal convictions

Special minimum wages (SMWs)-

to workers with disabilities provide persons with disabilities the opportunity to work Employers must receive certificates from the Wage and Hour Division (WHD) of DOL that authorize the employers to pay

FLSA does not require:

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

A private employer

will be able to argue that the computer belongs to the employer and is subject to inspection at any time a public employee may be able to claim some reasonable expectation of privacy in the contents of his or her computer if, for example, it is located in a private office and the computer is not shared with others

Executive

· 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."

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."

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."

Subminimum Wage Rates-

· Tipped employees may be paid less may pay tipped workers $2.13 an hour in cash wages, provided the employees receive at least $5.12 an hour in tips.

Child Labor

· 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.

Additional SIC info

· Virgin Islands has been the same as in the continental United States since 1989 · Puerto Rico, minimum wages by industry were raised, in steps, until they were the same as in the continental in 96 · American Samoa and the Commonwealth of the Northern Mariana Islands (CNMI) were not covered Thereafter, increases will be made every three years until they reach the federal minimum wage. · CNMI entered into a Covenant of Association. CNMI retained control over the minimum wage in the islands.

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.

CL Minimum Age

· cannot work in occupations determined by the Secretary of Labor to be hazardous to minors. The minimum age to work in hazardous occupations in nonagricultural occupations is 18. In agricultural occupations, the minimum age is 16.

Who Is Covered by the FLSA?

· covers employees and enterprises engaged in interstate commerce, annual sales or business done of at least $500,000. (hasn't been raised since '89) · applies to hospitals; institutions primarily engaged in the care of the sick, aged, mentally ill, or disabled who reside on the premises; schools for children who are mentally or physically disabled or gifted; federal, state, and local governments; and preschools, elementary and secondary schools, and institutions of higher education · Individuals 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

Who does the FLSA cover?

· covers most, but not all, private and public sector employees, certain employers and employees are exempt from coverage.

Domestic Service Employees

· employed in private households. (housekeepers, cooks, full-time babysitters, and others) · domestic service workers who provide companionship services and live-in domestic service workers (are exempt from both the minimum wage and overtime standards) Companionship services are defined as "those services which provide fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs." Work related to the care of the aged or infirmed individual: • preparing meals, bed making, or washing clothes. · General household work (such as housecleaning) must be "incidental" (20% or less of the total hours) · Companionship services do not include services performed by trained personnel, such as registered or practical nurses. · Fellowship and protection may include activities such as conversation, reading, watching television, going for walks, or visiting with friends of the person being cared for. · May also help the person use a wheelchair or walker and help the person move from one area of the home to another. · may include occasional feeding, dressing, bathing, or grooming. may occasionally drive the person to run errands or to appointments or social events. · would not include household work that benefits other members of the household, such as housekeeping, making meals, or doing laundry. · would not include medical care provided by persons with specialized training. would also extend minimum wage and overtime coverage to companions employed by a third-party employer, and extend overtime coverage to live-in domestic workers employed by a third party

Salary threshold

· minimum salary threshold to quality for exemption from the overtime provisions of the FLSA from the current level of $55 per week ($23,660 annually) to $679 per week ($35,308 annually)enacted on 3/7/19. raise the threshold for "highly compensated employees" from $100,000 annually to $147,414 a year

Wages CL

· must be paid at least the applicable federal or state minimum wage. However, employees in agriculture are exempt from the overtime requirements of the FLSA allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) paid at least annually to satisfy up to 10% of the standard salary level, in recognition of evolving pay practices; and

Break Time for Nursing Mothers

· 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 · 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 · not required to compensate nursing mothers

Outside Salespersons

· orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and · The employee must be customarily and regularly engaged away from the employer's place or places of business. · Someone who makes sales at the customer's home or place of business. · work hours that are convenient for the customer · hours worked by outside salespersons may be difficult for employers to monitor

Social Media

· the nature of individual gripes than "concerted activity" are not protected under federal labor law. (48) If employees (2 or more) ban together for mutual aid and support, this may be considered a protected concerted activity by National Labor Relations Board. · protects workers' rights to say what they want about where they work, even if it's in a vitriolic and insulting tweet or post. 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. · Workers who complain about employers on social media can't be fired if they're involved in what's called concerted activity · Posts encouraging insubordination aren't protected · Employees can also be fired for posting information about clients or customers. And if their posts are racist, homophobic, sexist or discriminate against a religion, companies should fire workers rather than be seen as tolerating or condoning the employees' views