HR Department Needs Annual Check-Up Too (Part II)

By: Rachel D. Gebaide

Senior living residents see their physicians for preventive care and to monitor existing conditions. Shouldn’t senior living facilities do the same for their human resources departments?

Today’s topic: FLSA and Other Wage and Hour Matters

Employers in all industries have seen a substantial uptick over the last decade in lawsuits and pre-suit demands for alleged unpaid overtime under the Fair Labor Standards Act (FLSA).  In addition, the IRS and the U.S. Department of Labor’s (DOL) Wage and Hour Division have joined forces to make sure that independent contractors are properly classified and that non-exempt employees are paid correctly for overtime hours worked.

The DOL investigates specific complaints for unpaid wages, and they also handle “directed” investigations into the payroll practices of companies within specific industries in which the DOL has concluded that compliance is more likely to be low.

If you are served with a complaint, a pre-suit demand letter, or a DOL investigation letter, will you be ready?  Periodic internal wage and hour audits can prevent or help defend claims for unpaid wages, including overtime.

Consider the following:

  • Are your facility’s employees properly classified as exempt or non-exempt from the overtime requirements of the FLSA?
  • Are exempt employees paid on a salary basis as that term is defined by the DOL?
  • Have you analyzed your exempt employees’ primary job duties to ascertain whether they support the claimed exemptions?
  • Are non-exempt employees recording their hours worked and being paid correctly for overtime, when applicable?
  • Do you know your facility’s seven (7) day work week (or 14-day work week if you are using the 8 and 80 method for a nursing facility) for purposes of determining whether and how much overtime is due?
  • Are your facility’s independent contractors properly classified, or are they employees masquerading as misclassified 1099 workers?

When the DOL conducts an investigation into FLSA compliance, investigator typically requires the target employer to provide information regarding compliance with child labor laws and the Family and Medical Leave Act.  If you have more than 50 employees within a 75-mile radius, your wage and hour audit is also a good time to make sure that you are in compliance with the FMLA poster requirements and that your FMLA policies are up to date as well.

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