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Paralegal Exempt Employee New York

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Paralegal Exempt Employee New York document sample

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									             Employment Law
             Instructor Neilson




11/10/2010                        1
Fair Labor Standards Act
29 U.S.C. §201 et seq
 Overview
      Has large economic impact on US
      What employers must comply?
        • Annual gross volume over $500,000 OR
        • Hospital, businesses providing medical or nursing
          case, school/preschool, federal state or local govt
          agency OR
        • Employees or enterprise regularly involved in
          interstate commerce
              Independent contractors are not covered, but note:
               Employer‘s classification can be rejected
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FLSA
 What does FLSA address?
      Minimum Wage
      Maximum hours of work
      Overtime pay
      Regulation of Child labor
      Record-keeping




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What is required for minimum
wage?
Nonexempt workers must receive:
       $5.15/hour Federal
       $2.15/hour for workers who receive tips
         • Washington: $7.63 currently
         • Employer can‘t take any deductions (ex: for work
           clothing) that would result in a minimum wage
           violation




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What are Overtime Requirements?
 Over 40 hours a week (not counting any holiday, vacation, or sick
 time) must be compensated at 1.5 times the usual rate
     Employer may not average
     Employer may not offer ‗comp‘ time instead of overtime
     Employer must compensate based on average hourly rate from all
     earnings if ee earns more than salary
     Include any activity controlled or required by employer and for
     benefit of employer‘s business (ex: short rest periods, waiting time
     (where ee is unable to use time for own purposes)
       • E.g.: Donning protective clothing and walking to meat-packing
         warehouse is compensable time. 2005 SCT case, IBP v.
         Alvarez



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Recordkeeping Requirements
 Employer must keep records for each
 nonexempt employer (hours worked, pay
 rate, total earnings, deductions from
 earnings, date of payment and period
 covered by payment)
 Employee should not keep own time (they
 will be treated as valid unless good reason
 exists to doubt credibility of such records)

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FLSA Mythbusters
 The Wage and Hour law does not require:
  vacation, holiday, severance, or sick pay,
 meal or rest periods, holidays off, or
 vacations, premium pay for weekend or
 holiday work, pay raises, or fringe benefits,
 a discharge notice, reason for discharge, or
 immediate payment of final wages to
 terminated employees, pay stubs

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Exemptions from Overtime and
Minimum Wage Rules
 Categories of Exempt Employees:

      Executive (salary of at least $455/week, primarily manage & direct work of 2+
      other F-T ees with power to hire/fire)

      Administrative (salary of at least $455/week, exercises discretion and independent
      judgment re: significant matters relating to employer‘s general business operations)

      Professional (salary of at least $455/week, has advanced knowledge and
      consistently exercises discretion; this includes Employees in certain computer-
      related occupations paid at least $27.63 an hour)

        • Outside sales employees
        • EE‘s of certain seasonal amusement or recreational establishments, small newspapers,
          seamen on foreign vessels, employees engaged in fishing operations, employees engaged
          in newspaper delivery, some farm workers, casual babysitters and person employed as
          companions to elderly/infirm




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Illustrations of Exempt
 Highline instructor (professional)
 Paralegal if salaried (professional)
 Attorney (potentially all 3)




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Illustrations of Nonexempt
 Receptionists
 Secretaries
 File clerks
 Technicians




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Exempt from Overtime Only
 Certain commissioned employees of retail or service establishments;
 auto, truck, trailer, farm implement, boat or aircraft salesworkers, or
 parts clerks and mechanics servicing autos, trucks, or farm
 implements, who are employed by nonmanufacturing establishments
 primarily engaged in selling these items to ultimate purchasers.
 Employees of railroads and air carriers, taxi drivers, certain employees
 of motor carriers, seamen on American vessels, and local delivery
 employees paid on approved trip rate plans
 Announcers, news editors, and chief engineers of certain
 nonmetropolitan broadcasting stations
 Domestic service workers living in the employer‘s residence (―Fran‖
 in ―The Nanny‖),
 Employees of motion picture theaters
 Farmworkers




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Exemptions
        • Just because…
              someone is paid a salary does not mean the person is
               exempt! Salary can only compensate for straight-time pay
        • Just because …
              someone has excellent job skills doesn‘t mean he or she
               uses the ―independent judgment and discretion‖ used to
               rate an exemption
        • Just because…
              someone has a college degree doesn‘t mean that person
               rates an exemption
        • Just because…
              the person is called ―Manager‖ doesn‘t mean he or she
               performs the supervisory duties or discretion required for
11/10/2010     exempt status                                      12
Remedies
 Report claim to DOL -can assess civil money penalties
 up to $1,000 for repeated/willful violations; injunction,
 attys fees, liquidated damages (back wages), possible
 criminal sanctions for egregious conduct (they may not
 take action)
 File lawsuit —double back wages going back 2 years
 before suit brought and going forward until case is
 resolved; (can often go back 3 years if company knowingly
 disregarded FLSA); out of pocket litigation expenses,
 attorneys fees
     No class actions but other ee‘s can join suit once filed

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Example of suits
 In Connecticut, a federal court recently held that a computer ―help-
 desk‖ technician who claimed that he and ―a few thousand‖ other techs
 were entitled to overtime pay for the past three years could proceed
 with his class action claims.

 A federal court in New Jersey recently approved a class action brought
 on behalf of all former and current janitors who performed work for
 Wal-Mart since January 2000. The workers claim that they were
 forced to work at least 60 hours per week without overtime or other
 benefits.

 In November, a federal court in the District of Columbia permitted
 nine telecommunications engineers to proceed with a collective action
 against their employer for unpaid overtime since a reorganization in
 2003.



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Examples of suits, continued
 The DOL recently announced that after a Wage & Hour investigation, 431
 garment workers received $238,460 (approximately $530 apiece) in back
 wages and the employer was fined $25,000 for missing a payday and failing to
 pay overtime to its workers.

 The DOL also announced a grocery wholesaler in New York agreed to pay
 102 employees $237,052 (approximately $2,200 apiece) in back wages after it
 admitted to misclassifying non-managerial employees as being exempt from
 overtime requirements.

 An Atlanta-based construction company was ordered to pay $350,000 in back
 wages, plus a $60,000 fine for FLSA violations, including failure to pay
 overtime and failure to keep proper employment records. In a related case, a
 sub-contractor was also ordered to pay $350,000 in back wages, in addition to
 $700,000 in liquidated damages as a penalty.




11/10/2010                                                           15
Equal Pay Act (1963 Amdt to
FLSA)
 Employee must pay female employees the same rate as
 male employees for the same work.
 ―Equal‖ means jobs require equal skills, effort, and
 responsibility and performed under similar working
 conditions
 Deviation permitted only for:
      Seniority
      Merit
      System based on quantity or quality of production or
      Any differential factor other than sex
        • See p. 74
        • Bring EEOC charge or sue privately – back pay times 2 (with 2d back
          pay as liquidated damages)



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Child Labor
 Minimum age for employment is 16 years
 16-18 year olds cannot work in occupation
 that secretary of labor deems particularly
 hazardous (e.g. coal-mining, logging,
 roofing)
      Driving is fine!




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Quiz




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For Next Class:
 Read Chapter 4




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