NATDA Magazine Sept/Oct 2017 NM_Sept2017WEB-ilovepdf-compressed - Page 40

Written by: Andrew Dearing, Trailer Makers Insurance The Fair Labor Standards Act (FLSA) is cracking down on employers who fail to pay their employees overtime in accordance with state and/or federal law. By using the following tips, you should be able to properly calculate overtime pay and when it’s required by law. Let’s start with properly classifying your employees as exempt or non-exempt. The difference is that non-exempt employees are entitled to overtime compensation of 1.5X their regular rate. Job duties will primarily determine if the employee is exempt from over- time. However, even if you pay a non-exempt employee a salary, that does not make them exempt from overtime pay. If a non-exempt employee is paid a salary, the employer must convert their salary to a regular hourly rate to determine their overtime rate. Regular rate of pay is based on hours worked. It does not in- clude holiday, PTO/vacation time, or other fringe benefit payments such as gifts, discretionary bonuses, benefit plan contributions, or reimbursement for work-related expenses. It includes wages, commissions, non-discretionary bonuses, shift differentials, and some on-call payments. To qualify as a discretionary bonus, the amount of the payment must be determined within the sole discretion of management. A key to maintaining the discretionary status of a bonus is to vary the bonus amounts to coincide with company performance. Paying a discre- tionary bonus that is regularly paid each year is not advised as it may lose its discretionary status if the employees come to expect the payments. Conversely, a non-discretionary bonus would include: production bonuses, retention bonus, attendance bonus, quality assurance bonuses, cost of living bonus or a bonus that is intended to attract employees to an isolated or less desirable job or job site. The easiest way to spot a non-discretionary bonus is if it is tied to some type of metric. If it is, it must be included within the regular rate of pay and will then increase the amount of overtime pay that will be owed. Another important item is compensable time or hours. The FLSA has a continuous workday principle where all hours between the beginning and the end of the workday must be paid. It includes ANY hours the employer has required work or the employee has been allowed to work. This includes the putting on and taking off protec- tive gear and uniforms, pre-and-post work activities, travel time, call time, training and testing. Non-exempt employees must record all hours worked daily. Employ- ers should ensure accuracy of these records by having the employee sign their time records or any changes made. Train your managers and employees to understand “off the clock” and to recognize what are recordable work- ing hours. By having your pay practices in writ- ing and having them signed off by the employee, the employee will understand the policy and will report any errors immediately. So, how do you pay overtime? Overtime must be cal- culated on a workweek basis defined by a fixed, regularly occurring, 7-day period (or 168 hours). You cannot average hours over a pe- riod of two weeks or more. Even if your company pays bi-weekly or semi-monthly, calculate overtime by the 7-day workweek. Em- ployees can be paid on a piece rate, commission, or some other basis, but all earnings must be converted to an hourly rate (a.k.a. the regular rate). Let’s say John makes $12/hour. He works 56 hours in a workweek and earns $50 in commission (or bonus). Let’s look at the math: • • • • • • • Straight time (ST) compensation is 56 hours x $12 an hour + $50 bonus = $722 (total ST compensation) $722 (ST)/ 56 hours worked = $12.89 (regular rate) $12.89 (regular rate) x ½ = $6.45 (half time premium) $12.89 (regular rate) + $6.45 (half time premium) = $19.34 (overtime rate) 40 hours straight time x $12.89 (regular rate) = $515.60 (ST earnings) 16 overtime hours x $19.34 (OT rate) = $309.44 (OT earnings) $515.60 (ST earnings) + $309.44 (OT earnings) = $825.04 (total weekly earnings) continued on page 42 40 NATDA Magazine www.natda.org