For all of you struggling with the new overtime regulations don’t feel bad that you may find this difficult to deal with implementing. The FLSA (Fair Labor Standards Act) is actually a pretty complicated law. The nuances of the regulations and the interpretations by the DOL and the courts add yet another level of complexity. It is so complex that even the U.S. Department of Labor cannot get it right.
Ten years in the making
In 2006 the union representing some of the DOL’s workers filed a grievance that stated their workers were not being paid correctly under the FLSA. The grievance alleged that the DOL had misclassified workers as exempt and that managers required workers to work off the clock to avoid paying overtime. According to attorney Fiona Ong some of the misclassified employees were reclassified to nonexempt during the process but the DOL fought the union for 10 years on the overtime payment issues.
Ong points out some of the issues wrapped around “off-the-clock work”. She said:
Sometimes the employee is actually directed by his supervisor to clock out and then continue working. Other times, the supervisor turns a blind eye to the fact that the employee must do work beyond what is written on his timesheet in order to get the work done. In addition, with the increase in the use of smartphone technology, which enables employees to check and respond to work-related emails and text messages from outside the office, and telecommuting, non-exempt employees may be performing additional work outside the traditional workplace and outside their scheduled work hours, for which they should be compensated.
These issues apply to organizations of all sizes and shapes and they are enforced by the DOL against these employers. The irony is that the DOL fought having to comply with these regulations.
Ong pointed out in her article that the typical wage and hour lawsuit runs $200,000 to $1.5 million for large settlements. The DOL settled their lawsuit with a payment of $7 MILLION! Bet you did not hear that in the news did you?
Perhaps that is why the DOL investigators are so testy when talking to employers, they were not getting paid properly felt cheated and attributed that sentiment to all employers they investigated.
Unfortunately, with the FLSA there is no middle area. You either do it right or you do it wrong. The hard part is determining if you are doing it right. If you don’t know get some help. You certainly don’t want to knock the DOL out of first place on the size of a settlement payment.