Archive for August, 2010
August 30th, 2010 | 
Author: The Fair Labor Standards Act has been amended numerous times since 1938 when it was first enacted and still provides protection and defines the law in reference to minimum wages, overtime pay, child labor and the record keeping required by all employers doing a volume of not less than $500,000 annually. There are, of course, exceptions to this rule. Hospitals and institutions that take care of the sick, aged, disabled and mentally ill with inpatient care are covered by this act. Schools, including all elementary and secondary schools and those catering to the mentally or physically disabled and to the gifted are also covered, as well as local, state and federal governmental agencies. The act also covers domestic service workers if they receive at least $1700 (this number changes every year) in cash wages from any single employer in a calendar year or if they work more than eight hours in any one week for one or more employers. Domestic service workers are full-time babysitters, nannies, housekeepers, cooks and chauffeurs.
There are a number of exemptions to both the minimum wage requirements and to the overtime pay requirements, based on your profession. Your local Wage and Hour Division office should be able to tell you if you are eligible for protection under this act.
The basic provisions, unless an employee is exempt, is that as of July 24, 2009, the minimum wage requirement is $7.25 an hour. Youth under the age of 20 may be paid less during the first 90 consecutive calendar days of employment discrimination, which is usually considered a trial or training period, and that amount cannot be less than $4.25 an hour. Employers also cannot just fire an older employee in order to hire a youth at the lower pay rate. Questions about this area of the law are available on the Wage and Hour Division Fact Sheet #32: Youth Minimum Wage-FLSA (Fair Labor Standards Act).
The laws regarding piece-work or tipped employees are pretty complicated and allow for paying less per hour as long as the remainder is earned in the way of commissions paid on piece-work or in the way of tips. Fact Sheet #15: Tipped Employees, under the FLSA can answer any questions or concerns you may have as either an employer or employee.
Also be aware that certain individuals can be employed at wages below the statutory minimum wage under certificates issued by the DOL (Department of Labor). Vocational student learners, full time students in service or retail establishments or working in the field of agriculture of in institutions of higher learning are also exempt from the act and are not protected under the minimum wage laws. This is also true of work being performed by the disabled, either physically or mentally, and even those who are disabled due to injury or age.
The following Fact Sheets are the most common under the FSLA:
- #1: The Construction Industry
- #2A: Employing Youth in Restaurants
- #3: Professional Offices
- #4: Security Guard/ Maintenance Service Industry
- #5: Real Estate and Rental Agencies
- #6: The Retail Industry
- #7: State and Local Governments
- #8: Police and Firefighters
- #9: Manufacturing Establishments
- #10 Wholesale and Warehouse Industries
- #11: Automobile Dealers
- #12: Agricultural Employers
- #16: Deductions from Wages for Uniforms and Other Facilities
- #21: Recordkeeping Requirements
- #23: Overtime Pay Requirements
- #24: Homeworkers
- #25: The Home Health Care Industry
- #27: New Businesses
- #28: The Family and Medical Leave Act of 1993
- #31: Nursing Care Facilities
- #33: Residential Care Facilities (Group Homes)
- #35: Joint Employment and Independent Contractors Under the Migrant and Seasonal Agricultural
- #39: The Employment of Workers with Disabilities at Special Minimum Wages
- #45: Hotel and Motel Establishments
- #46: Daycare Centers and Preschools
- #58: Cooking and Baking
- #61: Day Laborers
- #64: Call Centers
- #66: The Davis Bacon and Related Acts (DBRA)
- #71: Internship Programs
As you can see, the FSLA can be complicated, at best, though the Wage and Hour Division (WHD) does a much better job of explaining and teaching than do some governmental agencies. Kudos to them for making a hard subject easier to understand!
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New Massachusetts Independent Contractor Rules
Employers need to be aware that the state of Massachusetts recently increased the penalties for those who misclassify employees as independent contractors.
Somers v. Converged Access explains that, the Massachusetts Supreme Judicial Court rules that the independent contractor law is a strict liability statute. This means that the employer’s intent in misclassifying a worker is irrelevant. Therefore, if the worker had been correctly classified as an employee, he was entitled to compensation for wages, overtime and benefits that he would have received. Besides, the employee was permitted to keep the $65 per hour that the company paid him as an independent contractor.
The employee could get paid from the Massachusetts company for benefits including vacation and holiday pay. In addition, the company was ordered to pay the employee overtime at a rate of 1.5 times the worker’s 65% per hour wage.
The Massachusetts defines more strictly the independent contractor than federal independent contractor regulations. He is free of any control and direction in connection with work performance, both in fact and under the contract. He performs a service outside the usual course of business of the employer. He is customarily engaged in an independently established trade, occupation or business. If the worker does not meet all these conditions, he or she is not an independent contractor but an employee.
By: Cecilia
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