FLSA Compliance

Avoiding Pitfalls with FLSA Compliance and Employee Timekeeping
Gerard P. Panaro, Esq. Of Counsel Howe Hutton, Ltd. Anna M. Hofmeister, CPA Partner Outsourced Services Tate & Tryon CPAs and Consultants
May 9, 2012
Agenda
9:0010:15 am:

Gerard P. Panaro, Esq., Of Counsel, Howe & Hutton
Overview of FLSA Requirements Understanding Exempt vs Non-exempt employee classifications The difference between employees and independent contractors Common FLSA compliance issues for nonprofits Break Anna Hofmeister, CPA, Partner, Tate & Tryon
10:1510:25 am: 10:2511:20 am:

Best Practices in time and record keeping Best practices in producing meaningful and accurate personnel cost information
11:20 pm11:30 am: Questions?
Fair Labor Standards Act: Classes of exempt employees:

There are eight categories: 1. Executives (those who manage the business, supervise 2 or more people) 2. Administrators (those who exercise independent judgment and discretion on matters of importance and who work in a line of the business (e.g., finance, facilities management, food service, etc.)) 3. Professionals (e.g., in-house counsel, CPA, doctor (but not bookkeepers; not nurses (generally))) 4. Computer programmers (two exemptions: 1) paid at least $455/wk or 2) paid at least $27.63/hr (the equivalent of about $57,500 a year))
Gerard P. Panaro Howe Hutton 1901 Pa Av NW DC 20006 301-518-9267 (cell) 202-466-7252 x 102 (o) gpp@howehutton.com
Fair Labor Standards Act: Classes of exempt employees:
There are eight categories (contd):

5.
6.
7. 8.
Creative or artistic people (but not necessarily graphics people or copyeditors or proofreaders) Highly compensated employees (those who do work such as the foregoing, but make at least $100,000 a year) Teachers or instructional employees Athletic coaches
Criteria for exemption as an executive employee:

1.
Compensated on a salary basis at a rate of not less than $455 per week Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof; Who customarily and regularly directs the work of two or more other employees; and Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.
2.
3.
4.
Criteria for exemption as an administrative employee

1.
Compensated on a salary or fee basis at a rate of not less than $455 per week Whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance to the business. This means acting with minimal supervision and being able to commit the organization.
2.
3.
Exercise of discretion and independent judgment:

In general, the exercise of discretion and independent judgment involves:
1.
2.
3.
The comparison and the evaluation of possible courses of conduct, and Acting or making a decision after the various possibilities have been considered The exercise of discretion and independent judgment implies that the employee has authority to make an independent choice, free from immediate direction or supervision.
Matters of significance refers to the level of importance or consequence of the work performed.
In evaluating whether the requisite discretion and independent judgment exists, the following job duties should be considered:
[01.] [02.] [03.]
[04.] [05.]
Whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices; Whether the employee carries out major assignments in conducting the operations of the business; Whether the employee performs work that affects business operations to a substantial degree, even if the employees assignments are related to operation of a particular segment of the business; Whether the employee has authority to commit the employer in matters that have significant financial impact; Whether the employee has authority to waive or deviate from established policies and procedures without prior approval;
In evaluating whether the requisite discretion and independent judgment exists, the following job duties should be considered:
[06.] [07.] [08.] [09.] [10.]
Whether the employee has authority to negotiate and bind the company on significant matters; Whether the employee provides consultation or expert advice to management; Whether the employee is involved in planning long or short-term business objectives; Whether the employee investigates and resolves matters of significance on behalf of management; and Whether the employee represents the company in handling complaints, arbitrating disputes or resolving grievances.
What discretion and independent judgment does not mean:
Must be more than the use of skill in applying wellestablished techniques, procedures or specific standards described in manuals or other sources. Does not include clerical or secretarial work, recording or tabulating data, or performing other mechanical, repetitive, recurrent or routine work. An employee who simply tabulates data is not exempt, even if labeled as a statistician.
What discretion and independent judgment does not mean:
Matters of significance do not mean merely that the employer will experience financial losses if the employee fails to perform the job properly. Employee who operates very expensive equipment does not exercise discretion and independent judgment with respect to matters of significance merely because improper performance of the employee's duties may cause serious financial loss to the employer.
Examples of exempt/nonexempt administrative jobs

Clerical duties are nonexempt:

Data entry for accounts payable and accounts receivable; Modifying account names/attributes in accounting software; Word processing; Sending notices; Receptionist duties; Ordering routine office supplies (DOL Field Operations Handbook).
Meeting planner/Events coordinator is exempt administrative position
There is no question that a meetings planner or events coordinator meets the criteria for exempt administrative status. According to the DOL Field Operations Handbook (Rev. 661, revised 11/29/2010), managers of convention and visitors service sales are exempt
Criteria for exemption as a professional employee:

1.
2.
Compensated on a salary or fee basis at a rate of not less than $455 per week Whose primary duty is the performance of work: a. Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction; or b. Requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.
Criteria for exemption as a computer employee

Computer systems analysts, computer programmers, software engineers or other similarly skilled workers in the computer field Compensated on a salary or fee basis at a rate of not less than $455 per week or Compensated on an hourly basis at a rate not less than $27.63 an hour
1.
2.
3.
Criteria for exemption as a computer employee

Primary duty consists of:
a.
4.
The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications; The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or A combination of the aforementioned duties, the performance of which requires the same level of skills.
b.
c.
d.
Computer network, internet and database administration is an example of work directly related to management or general business operations and will therefore qualify as an exempt administrative position
On the other hand, information technology (IT) support specialists is not an exempt position, as far as the DOL is concerned. According to the DOL Field Operations Handbook:
An IT Support Specialist (renamed from Help Desk Support Specialist) who is responsible for the diagnosis of computer-related problems, conducts problem analysis and research, troubleshoots, resolves complex problems either in person or by using remote control software, and ensures timely closeout of trouble tickets is not exempt as an administrative or professional employee.
Case Study
Heffelfinger v. Electronic Data Systems Corp., 580 F.Supp.2d 933 (C.D.Cal., 2008) Held: Information technology workers were exempt employees Nature of work:
The information technology workers worked at different customer locations and were charged with writing code, programming, and administering databases or networks Workers did more than only installing and troubleshooting computer systems. One employee was responsible for the design and integrity of database structures for a customer Employee suggested various architectures and presented representations of network design which the customer accepted upon the employee's recommendations approximately 50 percent of the time Second employee served as a technical team lead for a project which was highly visible, important, and critical to the customer's business operations.
Criteria for exemption as highly compensated employee
An employee with total annual compensation of at least $100,000 is deemed exempt if the employee customarily and regularly performs any one or more of the exempt duties or responsibilities of an executive, administrative or professional employee
Employee vs. Independent contractor
FLSA uses an economic reality test.
Factors to be considered:
1.
2.
3.
4.
5.
The degree of control exercised by the employer over the workers The workers' opportunity for profit or loss and their investment in the business The degree of skill and independent initiative required to perform the work e permanence or duration of the working relationship The extent to which the work is an integral part of the employer's business
Factors to be considered (contd):

6.
7.
No one factor standing alone is dispositive and courts are directed to look at the totality of the circumstances and consider any relevant evidence. [T]he final and determinative question must be whether the total[ity] of the [circumstances considered] establishes the personnel are so dependent upon the business with which they are connected that they come within the protection of the FLSA or are sufficiently independent to lie outside its ambit.
Opportunity for profit/loss. The appropriate inquiry has to do with relative investments, with control over larger aspects of the business, and with like forms of initiative. Degree of skill/initiative. Does work require extensive skill, training, and expertise? Permanence /duration of relationship. The more permanent the relationship, the more likely it is that a court will find a worker to be an employee. Work integral part of business. Focus is on the work, not the individual persons role. Courts consider this factor because independent contractor relationships often involve work that is not integral to the businessfor example, if a pipe bursts and a plumber is hired to fix it, the plumber would typically be an independent contractor
Interns and the FLSA

The Test For Unpaid Interns:
1.
2. 3.
4.
5.
6.
The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment; The internship experience is for the benefit of the intern; The intern does not displace regular employees, but works under close supervision of existing staff; The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded; The intern is not necessarily entitled to a job at the conclusion of the internship; and The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
Additional explanation: factors for/against intern status (1)

1.
In general, the more an internship program is structured around a classroom or academic experience as opposed to the employers actual operations, the more likely the internship will be viewed as an extension of the individuals educational experience (this often occurs where a college or university exercises oversight over the internship program and provides educational credit).

2.
The more the internship provides the individual with skills that can be used in multiple employment settings, as opposed to skills particular to one employers operation, the more likely the intern would be viewed as receiving training. Under these circumstances the intern does not perform the routine work of the business on a regular and recurring basis, and the business is not dependent upon the work of the intern.
3.

4.
On the other hand, if the interns are engaged in the operations of the employer or are performing productive work (for example, filing, performing other clerical work, or assisting customers), then the fact that they may be receiving some benefits in the form of a new skill or improved work habits will not exclude them from the FLSAs minimum wage and overtime requirements because the employer benefits from the interns work. If an employer uses interns as substitutes for regular workers or to augment its existing workforce during specific time periods, these interns should be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek.
5.

6.
If the employer would have hired additional employees or required existing staff to work additional hours had the interns not performed the work, then the interns will be viewed as employees and entitled compensation under the FLSA. Conversely, if the employer is providing job shadowing opportunities that allow an intern to learn certain functions under the close and constant supervision of regular employees, but the intern performs no or minimal work, the activity is more likely to be viewed as a bona fide education experience.
7.

8.
On the other hand, if the intern receives the same level of supervision as the employers regular workforce, this would suggest an employment relationship, rather than training.
WHD Advisory Opinion Letter on Volunteers

9.
The internship should be of a fixed duration, established prior to the outset of the internship. Further, unpaid internships generally should not be used by the employer as a trial period for individuals seeking employment at the conclusion of the internship period. If an intern is placed with the employer for a trial period with the expectation that he or she will then be hired on a permanent basis, that individual generally would be considered an employee under the FLSA.
10.
11.
U.S. Department of Labor/Wage and Hour Division (April 2012) Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act
WHD Advisory Opinion Letter On Volunteers

Person is volunteer provided the services are not the same type of service the employee is employed to perform and take place outside of the employees normal working hours. The FLSA recognizes the generosity and public benefits of volunteering and allows individuals to freely volunteer time to religious, charitable, civic, humanitarian, or similar non-profit organizations as a public service. Such a person will ordinarily not be considered an employee for FLSA purposes if the individual volunteers for such organizations without contemplation or receipt of compensation.
1.
2.
3.
WHD Advisory Opinion Letter On Volunteers

Paid employees may not volunteer to perform the same type of services for their employer that they are normally employed to perform. The employee must also be a bona fide volunteer who performs the services for civic, charitable, or humanitarian reasons without coercion or undue pressure.
4.
5.
Source: FLSA2006-18 (June 2, 2006)

Stipends for volunteers:

1.
A volunteer may receive no compensation, but may be paid expenses, reasonable benefits, or a nominal fee. A fee would not be considered nominal if it is, in fact, a substitute for compensation or tied to productivity. Generally, a key factor in determining if a payment is a substitute for compensation or tied to productivity is whether the amount of the fee varies as the particular individual spends more or less time engaged in the volunteer activities. If the amount varies, it may be indicative of a substitute for compensation or tied to productivity and therefore not nominal. Generally an amount not to exceed 20 percent of the total compensation that the employer would pay someone for performing comparable services would be deemed nominal.
2.
3.
4.
5.
Source:http://www.dol.gov/whd/opinion/FLSA/2008/2008_12_18_16_FLSA.pdf
Common FLSA compliance issues for nonprofits

Misclassification of employees as exempt Misclassification of workers as independent contractors Misclassification of workers as interns or volunteers Use of comp time Improper timekeeping; accounting for overtime
Recordkeeping requirements for nonexempt employees (1):

1. 2. 3. 4. 5.
Name Home address, including zip code Date of birth, if under 19 Sex and occupation in which employed Time of day and day of week on which the employee's workweek begins Regular hourly rate of pay for any workweek in which overtime compensation is due Explain basis of pay by indicating the monetary amount paid on a per hour, per day, per week, per piece, commission on sales, or other basis
6.
7.

8.
The amount and nature of each payment which is excluded from the regular rate Hours worked each workday and total hours worked each workweek Total daily or weekly straight-time earnings or wages due for hours worked during the workday or workweek, exclusive of premium overtime compensation Total premium pay for overtime hours Total additions to or deductions from wages paid each pay period including employee purchase orders or wage assignments The dates, amounts, and nature of the items which make up the total additions and deductions
9.
10.
11. 12.
13.

14. 15. 16.
Total wages paid each pay period Date of payment and the pay period covered by payment Record and preserve, as an entry on the pay records, the amount of retroactive payment of wages/compensation paid under supervision of WHD to each employee, the period covered by such payment, and the date of payment Prepare a report of each such payment Preserve a copy as part of the records Deliver a copy to the employee File the original with the WHD within 10 days
17. 18. 19. 20.

21.
With respect to employees working on fixed schedules, an employer may maintain records showing instead of the hours worked each day and each workweek, the schedule of daily and weekly hours the employee normally works In weeks in which an employee adheres to this schedule, indicates by check mark, statement or other method that such hours were in fact actually worked by him In weeks in which more or less than the scheduled hours are worked, shows that exact number of hours worked each day and each week
22.
23.
Source: 29 CFR 516.2

Recordkeeping requirements for exempt employees (1):

1. 2. 3. 4. 5.
Name Home address, including zip code Date of birth, if under 19 Sex and occupation in which employed Time of day and day of week on which the employee's workweek begins Total wages paid each pay period Date of payment and the pay period covered by payment The basis on which wages are paid in sufficient detail to permit calculation for each pay period of the employee's total remuneration for employment including fringe benefits and prerequisites
6. 7. 8.

Records to be kept for three years:

Payroll records. Certificates, agreements, plans, notices, etc. (collective bargaining agreements, plans, trusts, employment contracts, individual contracts, written agreements or memoranda summarizing the terms of oral agreements or understandings, Sales and purchase records.

Records to be kept for two years:

Basic employment and earnings records. All basic time and earning cards or sheets Wage rate tables Order, shipping, and billing records
Where records show insubstantial or insignificant periods of time

1.
In recording working time under the Act, insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded This rule applies only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee's fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him 10 minutes a day is not de minimis
2.
3.
4.

Use of time clocks (1)

Time clocks are not required Employees who voluntarily come in before their regular starting time or remain after their closing time, do not have to be paid for such periods provided, of course, that they do not engage in any work. Their early or late clock punching may be disregarded Minor differences between the clock records and actual hours worked cannot ordinarily be avoided, but major discrepancies should be discouraged since they raise a doubt as to the accuracy of the records of the hours actually worked
Use of time clocks (2)

1.
Rounding practices. There has been the practice for many years of recording the employees' starting time and stopping time to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour For enforcement purposes this practice of computing working time will be accepted But it must not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked
2.
3.

Speaker Biography
Gerard P. Panaro, Esq. is of counsel to Howe & Hutton, Ltd. in its Washington, D.C. office. He has over 30 years of experience in the practice of employment law and representation of nonprofit organizations in the District of Columbia and Maryland. Jerry advises tax-exempt organizations and small businesses and negotiates on their behalf on matters related to employment, corporate and tax matters, antitrust and administrative law. He is the author of Employment Law Manual (1998), and writes a newsletter on employment law for Aspen/Panel Press. He also does writing, training and seminars on employment law matters for clients and has done webinars for BankersonLine.com.
Gerard P. Panaro, Esq. Of Counsel Howe Hutton, Ltd. Washington DC - Chicago IL - St. Louis MO Mobile: 301-518-9267 Office: 202-466-7252 x 102 E-mail: gpp@howehutton.com www.howehutton.com
Overview:

Accounting requirements Reliable financial information Effective & efficient internal controls Grant requirements What to look for in timekeeping & payroll systems
Accounting Requirements

Reasonable Consistent Timesheets Estimates
Reliable Financial Information

Labor is often the largest expenditure Daily time recording Signed by the employees and approved by their supervisors Payroll recorded based on timesheets Benefits recorded based on personnel Well documented and communicated procedures
Effective Internal Control

Following should occur and have confidence of staff that it is in operation:

Time is tracked accurately Transactions are authorized and approved Segregate the timekeeping, payroll preparation, payroll approval, and payment functions Information is properly and promptly retained Applicable risks are weighed to ensure errors and omissions are minimized
Effective Internal Control (continued)
Meet needs of users Monitor the results/outputs for accuracy Clearly written and communicated policies and procedures setting forth responsibilities Applying available technology and concepts to achieve efficiency and effectiveness
Grant Requirements
Acceptance of grant creates legal obligation OMB Circulars Grant agreement
Grant Requirements (continued)

Overview

Segregate federal grant/contract program costs Support all payroll and fringe benefit costs Consistent application Ensure no expenses claimed were misused Administrative or financial capability to manage grant/contract funds Awareness to document labor expenditures

Personnel Activity Reports:

Must reflect after-the-fact determination of true activity Must account for total activity for which employee is compensated Must be signed by the employee and responsible supervisor Approvals must be visual with an audit trail Must be prepared daily and coincide with one or more pay periods Must reconcile to dollars charged to grant/contract

When Audited

Substantiate federal grant/contract expenditures. Appropriate timekeeping procedures are in place Procedures are documented Appropriate accounting and payroll tracking system in accordance with government agency directives are in place
Efficient Internal Control
Weigh cost vs. benefit of processes and details required Integrated timesheet, payroll and accounting systems Reminders Programmed approval process
What to Look for in a Tracking System

Compliance with applicable legal requirements Compliance with grant requirements Reliable financial information Be effective Be efficient
What to Look for in a Tracking System (cont.)

Multiple approvers Lock out codes Deactivate codes Adjust rates based on hours worked Export capabilities Syncing to other systems
What to Look for in a Tracking System (cont.)

Remote access Reminders Reports Back-ups
Questions?
Speaker Biography
Anna. M. Hofmeister, CPA is the partner in charge of Tate and Tryons Outsourced Accounting Services department and has more than 20 years of experience servicing the accounting, consulting, audit, and tax needs of the nonprofit industry. She is responsible for overseeing all phases of our outsourced accounting engagements. In her role as an interim or permanent CFO, Ms. Hofmeister frequently presents to finance committees and boards of directors on topics such as financial results, key performance indicators, improving financial performance, cash flow projections, cost allocations, U.S. and foreign operations and unrelated business income. Some of the most notable clients she oversees include the Alexander Graham Bell Association for the Deaf and Hard of Hearing, American Association of Poison Control Centers, Global Health Council, and National Court Reporters Association.
Anna M. Hofmeister, CPA Partner - Outsourced Services Tate & Tryon CPAs and Consultants Direct: 202-419-5103 E-mail: ahofmeister@tatetryon.com www.tatetryon.com

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FLSA Compliance

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Avoiding Pitfalls with FLSA Compliance and Employee Timekeeping

Gerard P. Panaro, Esq., Of Counsel, Howe & Hutton

10:1510:25 am: 10:2511:20 am:

11:20 pm11:30 am: Questions?

Fair Labor Standards Act: Classes of exempt employees:

Fair Labor Standards Act: Classes of exempt employees:

There are eight categories (contd):

Criteria for exemption as an executive employee:

Criteria for exemption as an administrative employee

Exercise of discretion and independent judgment:

[01.] [02.] [03.]

[06.] [07.] [08.] [09.] [10.]

What discretion and independent judgment does not mean:

What discretion and independent judgment does not mean:

Examples of exempt/nonexempt administrative jobs

Meeting planner/Events coordinator is exempt administrative position

Criteria for exemption as a professional employee:

Criteria for exemption as a computer employee

Criteria for exemption as a computer employee

Criteria for exemption as highly compensated employee

Employee vs. Independent contractor

FLSA uses an economic reality test.

Factors to be considered (contd):

Interns and the FLSA

Additional explanation: factors for/against intern status (1)

Additional explanation: factors for/against intern status (1)

Additional explanation: factors for/against intern status (2)

Additional explanation: factors for/against intern status (3)

Additional explanation: factors for/against intern status (3)

WHD Advisory Opinion Letter on Volunteers

WHD Advisory Opinion Letter On Volunteers

WHD Advisory Opinion Letter On Volunteers

Source: FLSA2006-18 (June 2, 2006)

Stipends for volunteers:

Common FLSA compliance issues for nonprofits

Recordkeeping requirements for nonexempt employees (1):

Recordkeeping requirements for nonexempt employees (2):

Recordkeeping requirements for nonexempt employees (3):

17. 18. 19. 20.

Recordkeeping requirements for nonexempt employees (4):

Source: 29 CFR 516.2

Recordkeeping requirements for exempt employees (1):

Source: 29 CFR 516.3

Records to be kept for three years:

Source: 29 CFR 516.5

Records to be kept for two years:

Source: 29 CFR 516.6

Where records show insubstantial or insignificant periods of time

Source: 29 CFR 785.47

Use of time clocks (1)

Use of time clocks (2)

Source: 29 CFR 785.48

Reasonable Consistent Timesheets Estimates

Reliable Financial Information

Effective Internal Control

Effective Internal Control (continued)

Acceptance of grant creates legal obligation OMB Circulars Grant agreement

Grant Requirements (continued)

Grant Requirements (continued)

Grant Requirements (continued)

Efficient Internal Control

What to Look for in a Tracking System

What to Look for in a Tracking System (cont.)

What to Look for in a Tracking System (cont.)