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Fair Labor Fair Labor Standards ActStandards Act

“FLSA”in school settings

OSBA PresentersOSBA Presenters

• Van Keating, Esq.Director of Management Services

• Renee Fambro, Esq.Deputy Director of Labor Relations

A legal overview of A legal overview of the FLSAthe FLSA

StatutesStatutes• Fair Labor Standards Act of 1938, 29 USC §201 et seq.

• Ohio Revised Code RC § 3319.086 defines standard work week as 40 hours unless authorized by Board as fewer hours.

• Ohio Revised Code RC § 4111.03 requires time and a half pay or compensatory time after regular work week

Compensation Compensation requirementsrequirements

• Time and a half must be paid or compensatory time must be given for time worked over 40 hours per week.

• The 40 hours does not include vacation or sick hours, but only actual hours worked (RC § 3319.086)

• The FLSA also sets minimum wage - currently $5.15/hour

FLSA forbids employees to volunteer

• Employees must be paid for all hours worked.

• Therefore, employees cannot volunteer to work for the district.

Occasional/Sporadic Occasional/Sporadic EmploymentEmployment

• Occasional or sporadic employment in a capacity different from regular duties will not entitle the employee to overtime even if combined time exceeds 40 hours

• The key is that the work truly must be occasional and solely at the employee’s option

• E.g. custodian substituting as a bus driver

Don’t forget ….Don’t forget ….Potential impact on:

• FMLA

• Benefits

• COBRA

Key Points of the Key Points of the FLSAFLSA

• Overtime >40 hours in 7 days

• Rate of 1.5X of “regular rate”

• “Regular rate” = blended value of all the various rates

FLSA in Ohio’s FLSA in Ohio’s SchoolsSchools

FLSA in SchoolsFLSA in Schools• Since the employees are “public employees” they are governed by the FLSA’s provisions

• FLSA divides workers into 2 categories - Exempt and Nonexempt - each of these have numerous subcategories

• Exempt = professional employees - teachers, administrators, executive employees

• Nonexempt = bus drivers, cooks, custodians, secretaries, etc

• Exempt employees are not subject to the requirements of the FLSA

Timekeeping Issues For Timekeeping Issues For

Bus DriversBus Drivers•Regular Routes•Extra Routes•Substitute Routes•Field Trips

Compensatory Time• Under the FLSA, boards of education must pay their non-teaching employees “time-and-a-half” or compensatory time

• Compensatory time paid to public employees must be used within a reasonable time

• Maximum accrual of 240 hours of compensatory time 29 USC §207 (o)

Other Overtime IssuesOther Overtime Issues

•Portal-to-Portal•Blended rate calculations•Other districts jobs:–Coach–Aide –Akron City Case

Which provisions Which provisions create the most create the most

problems?problems?When a claim is made against an employer, the only effective defense is very complete and accurate records of hours worked for every non-teaching employee. According to experts, almost all employers’ records are insufficient to withstand a lawsuit.

A complication is the fact that the U.S. Department of Labor issued new regulations on April 24, 2004, which will add some uncertainties as the courts attempt to interpret these new rules.

PenaltiesPenalties

• FLSA Employer fines– $1,000 - $10,000

• Recovery of back wages

• Potential cost of damages, fees and court costs

How to avoid How to avoid noncompliancenoncompliance

•Obey the law•Control number of hours worked•Keep good records (presumption in favor of employee without records)

•Post all notices•Educate supervisors

Collective Bargaining and Collective Bargaining and the FLSAthe FLSA

• The 40-hour work week cannot be bargained away.

• The school board can agree to a shorter “standard work week.”

• There can be greater than time and a half compensation such as work on Sunday or certain holidays or emergency times.

FLSA cannot be FLSA cannot be superceded by superceded by

bargaining . . . bargaining . . .

No collectively bargained or individual employment agreement can conflict with the OT/Compensatory time provisions of the FLSA

Contract LanguageContract Language

• Pay on any basis as long as it does not fall below minimum FLSA standards

• District “overtime” may be bargained to mean something different than “FLSA overtime”

TOP 8 FLSA PITFALLS IN TOP 8 FLSA PITFALLS IN THE SCHOOL SETTINGTHE SCHOOL SETTING

•Additional duties•Two-rate systems•Estimating hours worked•Salary v. hourly•Compensatory time•“Suffering or permitting” work

•Volunteer service•“On-call” time

QUESTIONS?QUESTIONS?

COMMENTS?COMMENTS?