Wage and hour rules continue to be a challenging area of workplace law to navigate,
judging by the questions employers asked during a recent BLR audio conference.
During a 60-minute audio conference on how to avoid wage and hour lawsuits,
listeners asked two experts questions ranging from how to calculate overtime
when an employee receives a bonus to what travel time is compensable under the
Fair Labor Standards Act.
Lawrence S. McGoldrick of Fisher & Phillips LLP and Paul J. Cherner of
Hinshaw & Culbertson LLP answered the questions live as they came in via
email or phone.
The first question asked was on whether bonus payments must be included in
an employee's regular pay rate for the purpose of calculating overtime. Cherner
said bonus pay must be included in the calculation when the bonus is nondiscretionary,
such as an attendance or production bonus.
Another listener asked if shift differentials must be included in the regular
rate of pay for overtime calculations. McGoldrick said shift differentials also
have to be included.
One listener asked when nonexempt employees' travel time is compensable. McGoldrick
said that travel time during a single day as part of the employee's principal
activity must be considered hours worked. When an employee stays overnight on
out of town travel, the time that cuts across the employee's regular work hours
must be considered hours worked, he said.
More than one listener had a question on whether it is permissible to have
exempt employees use time cards/time clocks to keep track of their hours. McGoldrick
said having exempt employees punch in and out would be a problem if the employer
treats the employee as nonexempt, such as docking employees' paychecks if they
work less than 40 hours in a week. As long as the employer is careful to avoid
treating an exempt employee as a nonexempt one, an employer is allowed to require
employees to use time cards, McGoldrick told listeners.
Later, a listener asked if an employer can require a nonexempt employee to
work off the clock to correct mistakes that the worker made during his or her
regular work hours. McGoldrick said this would be a violation of the law and
that employers must pay the employee for all hours worked.
Several participants asked when it is allowed to make deductions among exempt
employees. Cherner and McGoldrick said that in general, an employer is allowed
to make a deduction when the exempt employee is absent from work for a day or
more for personal reasons other than sickness or accident. They stressed that
exempt employees should never be docked for less than a full day.
Cherner answered the strangest question of the day. A listener asked the experts
their opinion on an employer who requires an employee to pay 25 cents every time
the employee is caught without a smile. Cherner said that the practice would
probably be an improper deduction under state law.
Purchase a CD copy of the Avoiding Wage & Hour Lawsuits audio conference.
Read more about deductions,
OT
calculations, and the FLSA
exemptions.
