I Wager DOL Will Find Something

Wage and hour issues are not something that your payroll company is handling – those folks handle your payroll and the information you provide.  Wages owed is a much more complicated issue, including whether time deducted by the payroll folks for breaks was in fact worked and therefore cannot be deducted to whether an exempt employee is not actually doing exempt work and therefore should be paid overtime worked at time and a half.  Some of the calculations involve some serious math!  And every work week needs to be calculated separately.  Ok, where’s the good news in this?  Well, one bright spot is that the federal Department of Labor is coming to LA to speak on wage and hour issues onMarch 15 to the Central Maine Human Resources Association (http://cmhra.shrm.org/) and the speaker welcomes attendees to submit questions in advance so she can try to get them addressed.  Send questions to me at rwebber@STA-law.com.

What are some of the topics to be covered and some areas of common errors?  Waiting, training, and travel time are all candidates.  Keeping in mind that time an employee works for an employer must be paid, time employees spend in meetings, lectures, or training is considered hours worked and must be paid, unless:

  • Attendance is outside regular working hours
  • Attendance is voluntary
  • The course, lecture, or meeting is not job related AND
  • The employee does not perform any productive work during attendance

If you have to think a while as to whether to pay it, just pay it.  It is a lot cheaper than litigating the issue to prove you were right.

Ordinary home to work travel is not work time…….usually.  But if the employee needs to stop at the shop first to pick up the company van, or is driving others to a worksite, or has to come in to the office first to get the parts, it needs to be paid time after that.  Travel between job sites during the normal work day is work time as well.  Special rules apply to travel away from the employee’s home community.  For those of you with employees traveling out of state, for example, to do work on big projects elsewhere or to attend meetings or sales events, you may want to submit an example of what you face in advance so DOL can address it efficiently right on the spot.

A recent case reminded me that just having an employment agreement doesn’t mean that the employee can be paid salary for unlimited hours with no overtime.  The work has to be exempt work AND the salary basis test must be met.  Agreements even if just memos in the personnel file can be useful to establish a number of issues under the wage laws and 24-hour shift duty is one of those areas.  If duty is less than 24-hours, the employee is considered to be working even if allowed to sleep or engage in other personal pursuits.  If duty is 24 hours or more, the parties can agree to exclude bona fide sleep and meal periods.  See that language “the parties can agree”?  Don’t rely on oral conversations with employees on matters like this.  Write it down and get it in the personnel file.  Both federal and state DOL will put a lot of weight on the agreement between the employer and employee.The same is true of arrangements involving different rates for different roles at work and the expected number of hours each week.  It could make the difference between whether you calculate the “regular rate” by dividing the amount earned by the hours actually worked or by 40 (or whatever the agreed time was).  For different rates for different types of work, make sure that is written down and in the personnel file.  You don’t want disagreement later that what you paid was not what was agreed to.

Finally, if you have payment arrangements where the same employee is being paid different rates for different work, make sure you know how to calculate that. This is also an area that DOL will be covering on March 15. Here is one of the mathematic gyrations involved:

21 hours * $8.50 =
26 hours * $9.00 =
$412.50 / 47 hours =
(regular rate)
$8.78 * 0.5 =
$4.39 * 7 hours =
(overtime due)

A couple bottom lines then: when in doubt, pay it out; get it in writing and put it in the personnel file; and make sure you know the exception you’re relying on before you don’t pay someone for overtime or for time spent doing something for the company, including travel and waiting-around time.

This article is not legal advice but should be considered as general guidance in the area of employment and corporate law.  Rebecca Webber is an employment attorney; others at the firm handle business and other matters. You can contact us at 784-3200 (telephone).  Skelton Taintor & Abbott is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine.  It has been in operation since its founding in 1853.