Tuesday, June 24, 2008
DOL Clarified Compensable Work Time Under FLSA
The U.S. Department of Labor recently has clarified compensable work time under the Fair Labor Standards Act regarding meal breaks, straight time, and overtime. In an opinion letter dated May 15, 2008, the Department issued the following conclusions:
l If an employee fails to take a 30-minute unpaid meal break and the failure to take a meal break does not cause the employee to work more than 40 hours in the workweek, no additional compensation is due to the employee if the employee's total wages for the workweek divided by the compensable hours worked equal or exceed the applicable minimum wage.
l If an employee fails to take a 30-minute unpaid meal break and the employee does work more than 40 hours in the workweek, the 30-minute unpaid meal break must be counted for purposes of determining overtime compensation. An employee must be paid all straight-time wages due for all hours worked before an employee can be said to be paid statutory overtime compensation due.
l If an employee who is regularly scheduled to work 35 hours per week works before the employee's scheduled start time or after the employee's scheduled end time and the employee's total hours are less than 40 hours per workweek, the employee is not due additional straight time compensation if the employee's total wages for the workweek divided by the compensable hours worked equal or exceed the applicable minimum wage.
l If an employee receives certain types of premium pay that are not otherwise legally required, that pay need not be included in the employee's regular rate of pay for purposes of computing overtime compensation. Also, certain types of premium pay may be credited toward the employee's overtime compensation requirements.
l Rounding of time is allowed so long as the employer does not arbitrarily fail to count an employee's fixed or regular working time. Rounding to the nearest five minutes, one-tenth or one-quarter of an hour is acceptable if, in the aggregate, the employer compensates the employees properly for all the time they have worked.
However, this opinion letter only provides guidable interpretation about “work time” under the Fair Labor Standards Act. So when applied to state laws, it may result in a different analysis.
l If an employee fails to take a 30-minute unpaid meal break and the failure to take a meal break does not cause the employee to work more than 40 hours in the workweek, no additional compensation is due to the employee if the employee's total wages for the workweek divided by the compensable hours worked equal or exceed the applicable minimum wage.
l If an employee fails to take a 30-minute unpaid meal break and the employee does work more than 40 hours in the workweek, the 30-minute unpaid meal break must be counted for purposes of determining overtime compensation. An employee must be paid all straight-time wages due for all hours worked before an employee can be said to be paid statutory overtime compensation due.
l If an employee who is regularly scheduled to work 35 hours per week works before the employee's scheduled start time or after the employee's scheduled end time and the employee's total hours are less than 40 hours per workweek, the employee is not due additional straight time compensation if the employee's total wages for the workweek divided by the compensable hours worked equal or exceed the applicable minimum wage.
l If an employee receives certain types of premium pay that are not otherwise legally required, that pay need not be included in the employee's regular rate of pay for purposes of computing overtime compensation. Also, certain types of premium pay may be credited toward the employee's overtime compensation requirements.
l Rounding of time is allowed so long as the employer does not arbitrarily fail to count an employee's fixed or regular working time. Rounding to the nearest five minutes, one-tenth or one-quarter of an hour is acceptable if, in the aggregate, the employer compensates the employees properly for all the time they have worked.
However, this opinion letter only provides guidable interpretation about “work time” under the Fair Labor Standards Act. So when applied to state laws, it may result in a different analysis.
Labels: DOL
Sunday, June 15, 2008
U.S. DOL auditing all Fragomen permanent labor certifications
On June 2, 2008, the U.S. Department of Labor announced that it has begun to audit all permanent labor certification applications filed by attorneys at Fragomen, Del Rey, Bernsen & Loewy LLP.
The DOL says that it is doing so because it has information indicating that in at least some cases the Fragomen firm may have improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring qualified U.S. workers.
Specifically, several recruitment forms drafted by Fragomen attorneys instructed their clients that “After interview, should any of the applicants appear to be qualified for the position, please contact a Fragomen attorney immediately to further discuss the candidate’s background as it relates to the requirements stated for said position.”
The DOL said they are going to audit all of Fragomen's permanent labor certification applications to see if anything illegal or improper was done.
The permanent labor certification process, established by the Immigration and Nationality Act, allows an employer to hire a foreign worker to work permanently in the United States, but only where it been established through a strict, detailed recruitment process that there is no qualified, willing and available U.S. worker to fill the position. According to the Department's regulations, the employer’s attorney is not supposed to be involved in the recruitment process (unless he or she is typically involved in the employer’s hiring). Audits of applications are one of the major tools the Department uses to ensure program integrity, and they are used to thoroughly examine applications to ensure that all program requirements have been properly followed. They are routine and regularly undertaken to ensure the program’s integrity.
“The department’s decision to further investigate these applications will help ensure the integrity of the permanent labor certification process and ultimately protect job opportunities for American workers,” said Gregory F. Jacob, solicitor of labor. “The department takes seriously its responsibility to ensure that American workers have access to jobs they are qualified and willing to do and that their wages and working conditions are not adversely affected by the hiring of foreign workers.”
The American Immigration Lawyers Association (AILA) is now investigating the matter.
The DOL says that it is doing so because it has information indicating that in at least some cases the Fragomen firm may have improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring qualified U.S. workers.
Specifically, several recruitment forms drafted by Fragomen attorneys instructed their clients that “After interview, should any of the applicants appear to be qualified for the position, please contact a Fragomen attorney immediately to further discuss the candidate’s background as it relates to the requirements stated for said position.”
The DOL said they are going to audit all of Fragomen's permanent labor certification applications to see if anything illegal or improper was done.
The permanent labor certification process, established by the Immigration and Nationality Act, allows an employer to hire a foreign worker to work permanently in the United States, but only where it been established through a strict, detailed recruitment process that there is no qualified, willing and available U.S. worker to fill the position. According to the Department's regulations, the employer’s attorney is not supposed to be involved in the recruitment process (unless he or she is typically involved in the employer’s hiring). Audits of applications are one of the major tools the Department uses to ensure program integrity, and they are used to thoroughly examine applications to ensure that all program requirements have been properly followed. They are routine and regularly undertaken to ensure the program’s integrity.
“The department’s decision to further investigate these applications will help ensure the integrity of the permanent labor certification process and ultimately protect job opportunities for American workers,” said Gregory F. Jacob, solicitor of labor. “The department takes seriously its responsibility to ensure that American workers have access to jobs they are qualified and willing to do and that their wages and working conditions are not adversely affected by the hiring of foreign workers.”
The American Immigration Lawyers Association (AILA) is now investigating the matter.
Labels: DOL
Sunday, June 01, 2008
U.S. DOL announces $20 million competition for demonstration projects to assist dislocated workers
On May 16, the Employment and Training Administration of the U.S. Department of Labor announced a competition for nearly $20 million in funding to build the skills and employment options for workers who have been dislocated or at risk of dislocation. State workforce agencies that want to get the grant have to compete to design demonstration projects targeting these workers.
“The programs that state workforce agencies devise will let workers vulnerable to joblessness take greater ownership of their careers,” said acting Assistant Secretary for Employment and Training Brent R. Orrell.Proposals may fall into four categories: “Entrepreneurship Opportunities for Dislocated Workers” programs will help individuals launch small businesses. “Getting Ahead of the Curve: Raising Educational/Skill Levels of Workers in Declining Industries” projects will develop strategies to upgrade the career skills of workers who are likely to face unemployment. “Innovative Adult Learning Models for Dislocated Workers” projects will identify new and innovative ways to train unemployed workers. Efforts aimed at “Preventing Dislocations of TANF Recipients Moving Into Entry Level Jobs Subject to Economic Churn” will help former TANF recipients maintain employment and enter or advance within high-growth industries. (“TANF” stands for “Temporary Assistance for Needy Families.”)
“The four categories outlined in this announcement offer state workforce agencies an opportunity to tailor programs that address their particular workforce needs,” said Orrell.
Each state workforce agency can only submit a single application under one of the four categories. To deliver services with sufficient depth, each application must detail partnerships that include employers, education and training providers, faith-based, community, and philanthropic organizations.This competition will close on June 13, 2008.
“The programs that state workforce agencies devise will let workers vulnerable to joblessness take greater ownership of their careers,” said acting Assistant Secretary for Employment and Training Brent R. Orrell.Proposals may fall into four categories: “Entrepreneurship Opportunities for Dislocated Workers” programs will help individuals launch small businesses. “Getting Ahead of the Curve: Raising Educational/Skill Levels of Workers in Declining Industries” projects will develop strategies to upgrade the career skills of workers who are likely to face unemployment. “Innovative Adult Learning Models for Dislocated Workers” projects will identify new and innovative ways to train unemployed workers. Efforts aimed at “Preventing Dislocations of TANF Recipients Moving Into Entry Level Jobs Subject to Economic Churn” will help former TANF recipients maintain employment and enter or advance within high-growth industries. (“TANF” stands for “Temporary Assistance for Needy Families.”)
“The four categories outlined in this announcement offer state workforce agencies an opportunity to tailor programs that address their particular workforce needs,” said Orrell.
Each state workforce agency can only submit a single application under one of the four categories. To deliver services with sufficient depth, each application must detail partnerships that include employers, education and training providers, faith-based, community, and philanthropic organizations.This competition will close on June 13, 2008.
Labels: DOL
Wednesday, April 23, 2008
US DOL Announces 125 Million Grants for Workers
According to the U. S. Department of Labor, 69 community colleges and community-based institutions that competed successfully under the President’s Community-Based Job Training Grants Initiative in 36 states have been awarded $125 million in grants within the past few weeks to support training programs for high-growth job sectors.
The grants, known as Community-Based Job Training Grants, are intended to build the capacity of such institutions to train workers to develop the skills for local industries and occupations that are expected to see strong growth, as well as for industries where the demand for qualified workers is already exceeding the supply.
The institutions chosen will use the funds to prepare students for careers in high-growth industries. Awardees were chosen from among 341 applications received in response to a competition announced August 8, 2007. The program was established in 2005 and awarded 72 grants in its first year. The second round of awards, made in 2006, totaled 70 grants.
Secretary of Labor Elaine L. Chao said, “Community colleges are in a unique position to prepare local workers for careers in high-growth industries. The $125 million awarded today will expand enrollment in education and training programs and provide more workers with the skills they need to succeed.”
The focus of the Community-Based Job Training Grants is to build community colleges’ capacity to equip workers with the skills required to succeed in local industries and to fortify the role that community colleges play in advancing the potential of America’s workforce.
The grants, known as Community-Based Job Training Grants, are intended to build the capacity of such institutions to train workers to develop the skills for local industries and occupations that are expected to see strong growth, as well as for industries where the demand for qualified workers is already exceeding the supply.
The institutions chosen will use the funds to prepare students for careers in high-growth industries. Awardees were chosen from among 341 applications received in response to a competition announced August 8, 2007. The program was established in 2005 and awarded 72 grants in its first year. The second round of awards, made in 2006, totaled 70 grants.
Secretary of Labor Elaine L. Chao said, “Community colleges are in a unique position to prepare local workers for careers in high-growth industries. The $125 million awarded today will expand enrollment in education and training programs and provide more workers with the skills they need to succeed.”
The focus of the Community-Based Job Training Grants is to build community colleges’ capacity to equip workers with the skills required to succeed in local industries and to fortify the role that community colleges play in advancing the potential of America’s workforce.
Labels: DOL
Monday, April 14, 2008
Elaws Advisor—a Poster Advisor to help in your business
Every business must display a variety of posters to comply with the poster requirements of several labor laws administered by the state and federal government; posters required for different businesses are also different. This is where elaws Advisors can help.
The elaws Advisor is a kind of interactive e-tool that can simulate the interaction you might have with an employment law expert. It will ask you a series of questions, evaluate your responses and provide a list of posters that you should display.
Each Advisor will also provide links to more detailed information you may find useful, and to DOL contact information for each poster in case of you wish to speak with a DOL representative about a particular issue or case that can’t be determined by the Advisor.
Advisor only provides information about Federal DOL poster requirements; you can contact your State Department of Labor to get information about the requirements for your state.
In addition, the Advisor does not provide posters that may be required for certain businesses. Certain types of posters can only be obtained from the DOL's Office of Workers' Compensation Programs (OWCP), including notices to employees that the employer is insured or self-insured to provide compensation benefits to its employees or eligible survivors in the case of work-related injury, illness or death.
Employers covered by the following statutes must obtain this insurance:
--Longshore and Harbor Workers' Compensation Act
--Defense Base Act (covers employees on overseas military, air, or naval bases under a public works contract performed by contractors with agencies of the U.S. Government)
--Outer Continental Shelf Lands Act (covers employees of firms working on the outer continental shelf of the U. S. engaged in exploration for and development of natural resources)
--Nonappropriated Fund Instrumentalities Act (covers civilian employees in post exchanges, service clubs, etc. of the Armed Forces)
You may contact the Office of Workers' Compensation Programs if you are not sure about whether you are covered under one of the above statutes.
The elaws Advisor is a kind of interactive e-tool that can simulate the interaction you might have with an employment law expert. It will ask you a series of questions, evaluate your responses and provide a list of posters that you should display.
Each Advisor will also provide links to more detailed information you may find useful, and to DOL contact information for each poster in case of you wish to speak with a DOL representative about a particular issue or case that can’t be determined by the Advisor.
Advisor only provides information about Federal DOL poster requirements; you can contact your State Department of Labor to get information about the requirements for your state.
In addition, the Advisor does not provide posters that may be required for certain businesses. Certain types of posters can only be obtained from the DOL's Office of Workers' Compensation Programs (OWCP), including notices to employees that the employer is insured or self-insured to provide compensation benefits to its employees or eligible survivors in the case of work-related injury, illness or death.
Employers covered by the following statutes must obtain this insurance:
--Longshore and Harbor Workers' Compensation Act
--Defense Base Act (covers employees on overseas military, air, or naval bases under a public works contract performed by contractors with agencies of the U.S. Government)
--Outer Continental Shelf Lands Act (covers employees of firms working on the outer continental shelf of the U. S. engaged in exploration for and development of natural resources)
--Nonappropriated Fund Instrumentalities Act (covers civilian employees in post exchanges, service clubs, etc. of the Armed Forces)
You may contact the Office of Workers' Compensation Programs if you are not sure about whether you are covered under one of the above statutes.
Labels: DOL
Tuesday, July 17, 2007
Companies Pay More Than $1 Million in Back Wages
Stonington Behavioral Health Inc. and its parent companies have been ordered to pay more than $1 million in back wages to 143 employees and a $49,156 in civil penalties to resolve violations of FLSA overtime requirements.
Stonington Behavioral Health Inc. in North Stonington, doing business as Stonington Institute, and Pennsylvania-based parent companies Universal Health Services Inc. and UHS of Delaware Inc. were accused of paying employees less than the federal minimum and overtime wages.
Under the investigation, full-time employees who worked with substance-abuse patients routinely worked unpaid, unrecorded hours.
The companies will pay a total of $1,075,218 in back wages for the period between July 1, 2004, and July 1, 2006. The back wage payments must be made no later than Sept. 5, 2007. The companies also have paid $49,156 in civil monetary penalties.
Stonington Behavioral Health Inc. in North Stonington, doing business as Stonington Institute, and Pennsylvania-based parent companies Universal Health Services Inc. and UHS of Delaware Inc. were accused of paying employees less than the federal minimum and overtime wages.
Under the investigation, full-time employees who worked with substance-abuse patients routinely worked unpaid, unrecorded hours.
The companies will pay a total of $1,075,218 in back wages for the period between July 1, 2004, and July 1, 2006. The back wage payments must be made no later than Sept. 5, 2007. The companies also have paid $49,156 in civil monetary penalties.
Labels: back wages, DOL, FLSA
Thursday, April 05, 2007
Gas Station Chain Agreed to Pay $1 Million in Back Wages
Chestnut Petroleum Dist., Inc. has agreed to pay $900,000 in back wages to 767 employees and a $100,000 penalty to the federal government to resolve violations of FLSA overtime requirements.
The company is accused of paying employees less than the federal minimum wage and failing to pay the workers proper overtime rates.
The labor department also found that the employers failed to keep required records showing hours worked each day; total hours worked weekly and pay rates for many workers.
The 100-thousand dollar civil penalty "will be used as further incentive to properly compensate workers from now on," U.S. Secretary of Labor Elaine Chao said.
Labels: back wages, DOL
