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Jessica Schwartz
Federal Workplace Posters
You have probably received an email, direct mailing or phone call telling you that Labor Law posting notices are always changing” or something similar. These solicitations attempt to scare you into purchasing “the complete set” of posters from their company so you will be in compliance. Should you purchase posters from these companies? That is up to you, but before you do, please read the rest of this article. Why so many posters? Historically, workers and employees have been taken advantage of by unscrupulous business owners and managers. Sometimes, the legislature’s response to this has been to require that posters be posted in a conspicuous place at the workplace so that workers can be informed of their rights. The Federal Government has requirements for what posters must be displayed. Additionally, many states each have other poster requirements, so make sure to check with your state’s labor department to find out more. What follows is a helpful table from the U.S. Department of Labor, listing information about posters and requirements. It is available online at www.dol.gov. Federal Poster Requirements: Job Safety and Health Protection, Occupational Safety and Health Administration 29 USC 657(c), 29 CFR 1903.2: Private employers engaged in a business affecting commerce. Does not apply to federal, state or political subdivisions of states. Any covered employer failing to post the poster may be subject to citation and penalty. Employers in states operating OSHA-approved state plans should obtain and post the state’s equivalent poster. Fair Labor Standards Act (FLSA), Minimum wage ...
The Importance of the Form I-9 and How to Conduct an Internal Audit
Whenever a business hires an employee, the Form I-9 should be completed. This form is used to verify two things. First, it is used to confirm that the employee is who they say they are (identity). The second is to confirm that the employee is authorized to work in the United States (authorization). Documentation and identification The I-9 requires that the employee submit identification to the hiring company to confirm these two things. The instructions which accompany the form require either a document from those listed in column A of the instructions, or a document from column B AND column C. The most commonly used ID, which can confirm both identity and authorization, is a valid United States Passport, which is found in Column A. Other common types of documentation include a valid driver’s license (column B) and a social security card or birth certificate (both column C). There are numerous other documents that satisfy the requirements of the I-9 and they are all listed on the instructions. Spend some time getting familiarized with the form, the instructions and the valid types of documentation. Should copies of documents be made? When an employee presents their supporting documents, should the employer make photocopies? The law does not require that photocopies are made, so it is up to the employer whether or not they would like to do so. However, be careful to avoid violating anit-discrimination laws. If an employer makes copies of some workers documents, but not copies of other workers ...
The Fluctuating Work Week Pay Method
There’s no question that overtime pay is expensive, and companies around the country have been caught by the Department of Labor using questionable worker classification methods and have tried all sorts of things to avoid paying workers overtime. If you have read past columns I have written, you know that most laborers classified as “subcontractors” are improperly classified. You should also know that you can’t put a foreman on salary to avoid the costs of overtime pay. So, how are companies supposed to be competitive and save money on overtime costs? While it is not legally compliant to put a foreman on salary to avoid paying any overtime, there’s a similar payment plan called the Fluctuating Work Week plan, which is similar to a salary, but is still compliant with the Fair Labor Standards Act (FLSA). The Fluctuating Work Week involves paying a worker the same base rate each week they work (similar to a salary), but there’s still an overtime payment that must be made when the worker works more than 40 hours in a workweek. To properly compensate an employee using the Fluctuating Work Week method, four criteria must be met: The employee’s hours must fluctuate from week to week The employee must receive a fixed salary that does not vary with the number of hours worked during the week (excluding overtime) The fixed salary amount must be sufficient to provide compensation every week at a regular rate that is at least equal to the minimum wage, and ...
What You Must Know About Overtime Pay
There’s no question that overtime pay is expensive, so knowing when and how it must be paid could save your company money. The Federal Law that governs overtime is the Fair Labor Standards Act (FLSA). Each state also has their own rules that cover overtime, but generally speaking, the FLSA is the body of law that you must follow. Under the FLSA, laborers such as landscapers, mowers, and machinery operators, must be paid overtime by the businesses that employ them. Employees must be paid overtime compensation when applicable, but what about independent contractors, subcontractors and salaried workers? These workers don’t need to be paid overtime pay; however they must be properly classified in order to avoid overtime payments to them. Simply labeling a worker a subcontractor for the purpose of avoiding overtime isn’t sufficient. The subcontractor must qualify under the Department of Labor’s seven-factor test in order for the classification to be valid. Salaried employees don’t need to be paid overtime, but once again, the classification as a salaried employee must be a valid one. Any worker that performs manual labor cannot be paid salary for the purposes of avoiding overtime payments by the company. Employees must be paid time and one half pay for all time beyond 40 hours in a work week. The time and one half rate is based upon the workers regular hourly wage. If a worker is improperly classified as a salaried employee, the hourly rate will be determined by dividing the weekly salary by ...
Your Minimum Wage Update
The federal Fair Labor Standards Act (FLSA) governs minimum wage. It applies to companies that have $500,000 or greater in gross sales in a year. It applies to companies that are involved in interstate commerce. It applies to companies that regularly use interstate communication. The FLSA also applies to employees of federal, state or local government agencies. This includes hospitals and schools. Bottom line is that it can be hard to argue that the FLSA does not apply to most green industry businesses. All workers must be paid minimum wage unless they qualify under an exemption. There are many exemptions to the minimum wage requirements, but few apply to the green industry. The various salary exemptions don’t apply to manual laborers, so you cannot avoid minimum wage (or overtime) by paying an employee a salary. Two other exemptions for minimum wage can occasionally be applied to the green industry. The agricultural exemption exempts agricultural workers from minimum wage and overtime requirements. However, to qualify under this exemption, workers must be engaged in the production and propagation of crops or plant material. The work must be focused on growing crops, and not related supporting work. So, mowing ditches around crop fields, doesn’t qualify a worker as an agricultural worker. The second exemption that occasionally applies to the green industry is the seasonal recreation and amusement establishment exemption. This exemption allows qualified businesses to avoid paying overtime and minimum wages to workers, but to qualify the business must be a seasonal business ...
7 Keys to Avoid Employee Misclassification
There’s a tendency in the green industry to hire people as laborers and state that they’re subcontractors or independent contractors. I don’t know when this trend started, but business owners often use these designations inappropriately. For the purposes of this article, I use the words subcontractor and independent contractor interchangeably. Using one term instead of the other has no real bearing on whether a worker is properly classified. Many people seem to believe that as long as a worker is given a subcontractor agreement and IRS Form 1099 at the end of each year, the worker can be classified as a subcontractor. This is a misconception, and when the U.S. Department of Labor visits a business to conduct an audit, it will determine whether workers are subcontractors or employees. The DOL can assess fines, back wages and overtime pay in the event workers have been misclassified. How can a business make sure that workers are properly classified? The Fair Labor Standards Act (FLSA) is one of the major laws that govern worker classification. The U.S. Supreme Court has addressed FLSA worker classification on multiple occasions and has ruled that there’s not a single rule or test that, on its own, can be used to determine worker status. Instead, the Court has found that taking the total situation into account is what controls status determination. Here are seven factors the Court has found influential in making this determination: 1. The extent to which services rendered is an integral part of the ...
Using Hand-Held Mobiles While Driving Big Trucks A No-No
If you haven’t already heard about the new mobile phone rule from the U.S. DOT, now is your opportunity to read all about it. As of Jan. 1, 2012, commercial truck drivers (and bus drivers) are prohibited from using hand held mobile telephones. Here is a summary of the rule from the US DOT Motor Carrier Safety Administration: “The final rule prohibits commercial drivers from using a hand-held mobile telephone while operating a commercial truck or bus. Drivers who violate the restriction will face federal civil penalties of up to $2,750 for each offense and disqualification from operating a commercial motor vehicle for multiple offenses. Additionally, states will suspend a driver’s commercial driver’s license (CDL) after two or more serious traffic violations. Commercial truck and bus companies that allow their drivers to use hand-held cell phones while driving will face a maximum penalty of $11,000.” This general description of the new rule of course brings up many great questions. Question: What size trucks are covered by the rule? Answer: The driver of any commercial truck over 10,001 GVW is required to comply with the new rule. Question: What if I use a “blue tooth” or have the phone on speakerphone, then can I use the phone? Answer: Maybe. Drivers are allowed to use phones with hands-free devices only if they are able to complete the use of the phone with the push of one button. This means that dialing a complete number is not allowed, nor is looking through a ...
