Cream of the Crop 1/Cream of the Crop 1.iso/BUSINESS/GUIDE61B.ARJ/LHARC3.EXE/WAGE-EMP.STA

Text File | 1991-04-22 | 19KB | 428 lines

/* Here is the full text of the U.S. Department of Labor's
publication regarding Employer's and the Minimum Wage Law */

Employer's Guide to Compliance with Federal Wage-Hour Laws

Note:

This publication provides general information about the laws
administered and enforced by the Wage and Hour Division.  It does
not attempt to answer all legal questions which may arise under
these laws.  It should not be considered in the same light as
official statements of position contained in regulations or
interpretative bulletins published in the Federal Register and
the Code of Federal Regulations, or in the official opinion
letters of the Wage and Hour Administrator.  Copies of these
publications may be obtained free from the Division's nearest
office.

Why has a Wage and Hour Representative visited me?

The Wage and Hour Division of the U.S. Department of Labor
administers a number of Federal laws which set basic labor
standards.  The Division's representative, called a compliance
officer, will make an investigation to determine whether these
laws apply to your business.  If your business is subject to
these laws, the compliance officer will verify that your workers
are paid according to the law and that youths under 18 are
employed as provided by law.  The Division does not require a
compliance officer to previously announce the scheduling of an
investigation.  Although in many instances the compliance officer
does advise employers prior to opening the investigation, he/she
cannot always do so.  The compliance officer must have sufficient
latitude to initiate unannounced investigations in many cases in
order to observe normal business operations and expedite
development of the facts.  However, you have the right to request
that the investigation be delayed briefly if you are unable to
meet with the compliance officer due to prior commitments.

/* This is very important. You DO NOT have to drop everything and
proceed with an investigation. In fact, it's probably better
that you don't do so. Of course, you may have counsel present. */

Why was my business selected for an investigation?

Wage and Hour conducts investigations for a number of reasons.
Many are initiated by complaints.  All complaints are
confidential; the name of the worker and the nature of the
complaint are not disclosable.

In addition to complaints, the Division selects certain types of
businesses or industries for investigations.  Occasionally, a
number of businesses in a specific geographic area will be
examined.  In either situation, the objective is to improve
compliance with the law in those businesses, industries, or
localities.  Regardless of the reason for the investigation, all
investigations are conducted in accordance with established
policies and procedures.

What are my rights as an employer?

As an employer you have the right to:

*     Look at the compliance officer's credentials and, if there
     is any question, verify his/her identity by calling the Wage
     and Hour area director for your locality.

*     Receive a full explanation of the investigative process.

o    Ask any questions concerning the application of the law and
     receive copies of Wage and Hour's publications.

o    Receive an explanation of any violations or back wages found
     due.

o    Meet with the compliance officer's supervisor should you
     fail to resolve any compliance problems with the compliance
     officer.

o    Present additional information for consideration if
     violations are disclosed.

o    Request the presence of your attorney, accountant, or other
     advisors at any time during the investigative process.

/* USE THIS RIGHT! Don't waive it.*/

o    Pursue your case in the courts.

What are the laws and how do they apply?

Coverage under the Fair Labor Standards Act (FLSA) is very broad.
The FLSA applies to all employees of certain enterprises having
workers engaged in interstate commerce, producing goods for
interstate commerce, or handling, selling, or otherwise working
on goods or materials that have been moved in or produced for
such commerce by any person.  A covered enterprise consists of
the related activities performed through unified operation or
common control by any person or persons for a common business
purpose, and which is:

o    Engaged in laundering or cleaning or repairing of clothing
     or fabrics.

o    Engaged in the business of construction or reconstruction.

o    Engaged in the operation of a hospital; an institution
     primarily engaged in the care of the sick, the aged, the
     mentally ill or defective who reside on the premises; a
     school for mentally or physically handicapped or gifted
     children; a preschool; an elementary or secondary school; or
     an institution of higher education (regardless of whether or
     not such hospital, institution or school is public or
     private or operated for profit or not for profit).

o    Comprised exclusively of one or more retail or service
     establishments (as defined in the Act) whose annual gross
     volume of sales or business done is at least:

     Beginning July 1, 1978 - $275,000
     Beginning July 1, 1980 - $325,000
     Beginning January 1, 1982 - $362,500

     (any retail or service enterprise which had an annual gross
     volume of not less than $250,000 on June 30, 1978 and which
     later ceases to be a covered enterprise as a result of
     increases in this dollar volume test must continue to pay
     its employees at least the minimum wage in effect at the
     time of the enterprise's removal from the coverage, as well
     as overtime in accordance with the Act).

o    Any other type of enterprise having an annual gross volume
     of sales or business done of at least $250,000.

The dollar volume standard mentioned in (4) and (5) excludes
excise taxes at the retail level which are separately stated.

Employees who are not employed in a covered enterprise may still
be entitled to the Act's minimum wage, overtime pay, and child
labor protections if they are individually engaged in interstate
commerce or in the production of goods for interstate commerce.
These include:

o    Communication and transportation workers.

o    Employees who handle, ship, or receive goods moving in
     interstate commerce.

o    Clerical or other workers who regularly use the mails,
     telephone, or telegraph for interstate communication, or who
     keep records on interstate transactions.

o    Employees who regularly cross state lines in the course of
     their work.

o    Employees of independent employers who perform clerical,
     custodial, maintenance, or other work for firms engaged in
     commerce or in the production of goods for commerce.

o    Employees who produce, manufacture, or otherwise work on
     goods for commerce, or in processes or occupations closely
     related and directly essential to the production of goods
     for commerce.

If your business is covered by the FLSA, there are certain
standards you must follow:

Minimum Wage:  Presently $3.35 an hour for all covered employees.

Overtime:  Nonexempt workers must be paid one and one-half times
their regular rates of pay for all hours worked over 40 in a
workweek.  Some employees are excluded from the minimum wage or
overtime provisions, or both, by specific exemptions.  Because
each exemption is narrowly defined under the law, an employer
should carefully check its exact terms and conditions before
applying it.

Recordkeeping:  Business owners are required to keep payroll
records and records of hours worked for their covered employees.
The Act requires no particular form for the records.  All it
requires is that the records include certain identifying
information about your employees, the hours they work and the
wages earned.  The law requires this information to be accurate.
Following is a breakdown of the basic information that an
employer must record.

Identifying Information

o    Employee's full name and social security number.

o    Address, including zip code.

o    Birth date, if younger than 19 years old.

o    Sex.

o    Occupation in which employed.

Hours

o    Time of day and day of week when employee's workweek begins.

o    Total hours worked each day.

o    Total hours worked each workweek.

Wages

o    Basis on which employee's wages are paid (e.g., "$4 an
     hour," "$160 a week" "piecework").

o    Regular hourly pay rate for any week when overtime is
     worked.

o    Amount and nature of each payment excluded from the "regular
     rate".

o    Total daily or weekly straight-time earnings.

o    Total overtime earnings for the workweek.

o    All additions to or deductions from the employee's wages for
     each pay period.

o    Total wages paid each pay period.

o    Date of payment and the pay period covered by the payment.

Most of the information required by the Act is of the kind that
any company would keep in following ordinary business practices.

Records with somewhat different information are required for
workers with unusual pay arrangements.  This would include
domestics, homeworkers, certain hospital and nursing home
employees, tipped employees, employees whose pay includes board,
lodging, or other facilities, and employees who are exempt from
the Act's minimum wage and overtime pay requirements.

Child Labor:  Restrictions on the employment of minors in nonfarm
occupations vary according to their age and the nature of the
work to be performed.  The minimum age when employing minors in
nonfarm jobs is 14.  Minors who are 14 and 15 years old may work
outside of school hours in various nonmanufacturing, nonmining,
nonhazardous jobs, under these conditions.

o    No more than 3 hours on a school day, and 18 hours in a
     school week.

o    No more than 8 hours on a nonschool day, and 40 hours in a
     nonschool week.

o    No earlier than 7 a.m. and no later than 7 p.m. except from
     June 1 through Labor Day, when evening hours are extended to
     9 p.m.

Minors who are 16 and 17 years of age may work unlimited hours
and in any occupation other than those which have been determined
to be hazardous.  These are no restrictions for minors 18 years
or older.  At any age, youths may work for parents in their
solely owned nonfarm business (except in manufacturing or on
hazardous jobs).

Note

Not all businesses are covered by the FLSA, and some employees of
those that are covered may be exempt from the minimum wage and/or
overtime provisions.  The compliance officer will tell you how
the law applies to your business.

Government Contracts

If you have a contract or subcontract to provide goods or
services to the Federal government or to perform on federally
financed or assisted construction projects, there are several
other labor standards laws which may apply.

Walsh-Healey Public Contracts Act:  Sets basic labor standards
for workers performing on contracts in excess of $10,000 for the
manufacture or furnishing of goods to the Federal government.
Covered employees must receive the FLSA minimum wage and overtime
compensation of one and one-half times the regular or basic rate
of pay for hours worked after 8 in a day or 40 in a week,
whichever is greater.  The Act also prohibits the employment of
minors under 16 years of age on contract work.

Service Contract Act:  Requires that service employees performing
on contracts in excess of $2,500 for the furnishing of services
to the Federal government (as well as any subcontract thereunder)
be paid not less than locally prevailing wage rates and fringe
benefits, as determined by the Department of Labor, or, in
certain cases, the wages and fringe benefits (including
prospective increases) provided for in a predecessor contractor's
collective bargaining agreement.  No employee of an employer
performing on a government service contract may be paid less than
the FLSA minimum wage.

Davis-Bacon and Related Acts:  Require payment of locally
prevailing wage rates and fringe benefits to employees of
contractors or subcontractors performing work on federally
financed or assisted construction projects in excess of $2,000.

Contract Work Hours and Safety Standards Act:  Requires payment
of overtime compensation at one and one-half times the regular or
basic rate of pay after 8 hours a day or 40 hours a week to
laborers and mechanics working on most federally funded or
assisted construction contracts in excess of $2,000, on Federal
service contracts in excess of $2,500, and on Federal supply
contracts in amounts between $2,500 and $10,000.

If you have a government contract, the compliance officer will
determine your compliance with these laws.

Wage Garnishment:  The Wage and Hour Division also administers
the wage garnishment provisions of the Consumer Credit Protection
Act.  This law limits the amount of an individual's income that
may be legally garnisheed, or withheld to pay a debt.  It also
prohibits firing an employee whose pay is garnished because of
only one debt.

/* The rights and obligations regarding wage garnishment are
discussed in another tutorial.*/

What are the procedures followed in an investigation?

Section 11(a) of the FLSA authorizes representatives of the
Department of Labor to investigate and gather data concerning
wages, hours, and other employment practices; enter and inspect
an employer's premises and records; and question employees to
determine whether any person has violated any provision of the
Act.

An investigation is conducted by a compliance officer of the Wage
and Hour Division who will identify him- or herself and show you
official credentials.  The compliance officer will explain the
investigation process to you.  If you have any questions as to
the identity of the individual, you should ask for the name of
the person's supervisor and his/her telephone number so that you
may verify the compliance officer's identity.

An investigation consists of the following steps:

o    Examination of records to determine what laws or exemptions
     apply.  These records include, for example, those showing
     your annual dollar volume of business, your involvement in
     interstate commerce, and your work on government contracts.
     Information from your records will not be revealed to
     unauthorized persons.

o    Examination of payroll and time records and taking notes or
     making transcriptions or photocopies essential to the
     investigation.

o    Interviews with certain employees in private.  The purpose
     of these interviews is to verify your payroll and time
     records, to identify workers' duties in sufficient detail to
     decide what exemptions apply, if any, and to determine if
     minors are legally employed.  Interviews are normally
     conducted on the employer's premises, but other arrangements
     may be made at the employer's request.  In some instances,
     present and former employees may be interviewed at their
     homes or by a mail interview form.

o    When all the factfinding steps have been completed, the
     compliance officer will ask to  meet with you and/or your
     representative.  You will be told whether violations have
     occurred and, if so, what they are and how to correct them.
     If you owe back wages to employees because of minimum wage
     or overtime violations, the compliance officer will ask you
     to restore the under payments, and may ask you to compute
     the amounts due.

Should you wish to be represented by your accountant or attorney
at any point during this process, it is your right to do so.
When the compliance officer has advised you of his/her findings,
you and/or your representative may wish to present additional
facts for consideration if violations were disclosed.  At this
point, any questions you have will be answered to the best of the
compliance officer's ability.  In some cases, the compliance
officer may have to do research to provide the correct answers.

Should you reach an impasse in the resolution of the compliance
problems with the compliance officer, you may ask to meet with
the area director who supervises the Wage and Hour operations in
your area.

What enforcement procedures are provided by law?

While every effort is made to resolve the issue of compliance and
payment of back wages at an administrative level, the laws also
provide for enforcement procedures.  You should be aware that the
FLSA provides for the following:

o    A employee may file suit to recover back wages and an equal
     amount in damages, plus attorney's fees and court costs.

o    The Secretary of Labor may file suit on behalf of your
     employees for back wages and an equal amount in damages.

o    The Secretary may obtain a court injunction to restrain any
     person from violating the law, including unlawfully
     withholding proper minimum wage and overtime pay.

o    Employers who have willfully violated the law may face
     criminal penalties, including fines and imprisonment.

o    Employees who have filed complaints or provided information
     during an investigation may not be discriminated against or
     discharged for having done so.  If they are, they may file a
     suit or the Secretary of Labor may file a suit on their
     behalf for relief, including reinstatement to their jobs and
     payment of wages lost plus monetary damages.

In the case of the government contracts statutes, contract funds
may be withheld for violations under the Walsh-Healey Public
Contracts Act, Service Contract Act, Davis-Bacon and Related
Acts, and Contract Work Hours and Safety Standards Act.
Administrative hearings or, in some cases, court action may be
initiated to recover back pay under these laws.  In addition,
liquidated damages may be assessed for certain violations.
Violators of these laws may also lose their Federal contracts and
be declared ineligible for future contracts for a specified
period.

Where can I obtain additional information?

If you have any questions or want additional information, please
contact your local Wage and Hour Area Office, listed in the
telephone directory under U.S. Government, Department of Labor,
Employment Standards Administration, Wage and Hour Division.