A few of the noted trends include:
- Investigators seeking civil penalties even at a first investigation of a site, rather than reaching a resolution at that time. Penalties previously were generally given for second and third violations.
- Efforts to resolve claims on an enterprisewide basis; the violation is not only resolved at the site, but then a companywide investigation may follow.
- Even at the administrative level, liquidated damages are the “new normal”. Employers then have to afford back pay plus these liquidated damages.
- There are 50% more federal wage and hour investigators now than in 2008. In the 2013 budget, the DOL sought 1,839 full-time investigators.
- Wage and hour claims continue to increase, up more than 15% over the prior year.
What does this mean for us? The biggest wake-up call is that our determination of exempt vs. non-exempt positions will be scrutinized closer. (Note: salary vs. hourly pay does NOT indicate whether the position is exempt or non-exempt.) In general, the Fair Labor Standards Act (FLSA) requires that employees in the U.S. be paid at least the federal minimum wage for all hours worked, AND overtime pay at time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek. (Note: some state laws further identify employer requirements, such as paying OT for any hours over 8 hours in one day, in the state of California.)
There are exemptions, however, that will allow an employer to NOT pay overtime. These exemptions include tightly defined executive, administrative, professional, computer and outside sales employees. If an employee does not fit one of these categories, and these definitions are complex, then they must be paid overtime. If an employer classifies one of these employees as exempt from overtime, this is illegal according to the FLSA. Recently, the professional exemption is particularly scrutinized.
Please read the DOL Fact Sheet #17A for more information, available at: http://www.dol.gov/whd/regs/compliance/fairpay/fs17a_overview.pdf