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Secretary of Labor Thomas E. Perez

US Department of Labor: Spring Regulatory Agenda 2010

Wage and Hour Division (WHD)

Topic: Amendments to the Fair Labor Standards Act (FLSA)
Recordkeeping Regulations

This Notice of Proposed Rulemaking (NPRM) will support the Secretary’s outcome goals of securing minimum wages and overtime and helping middle-class families remain in the middle class.

Key Action

WHD intends to update the FLSA recordkeeping requirements to foster openness and transparency, to increase awareness among workers, and to encourage greater compliance by employers. DOL is considering a proposed rule requiring covered employers to notify workers of their rights under the FLSA, and to provide information regarding hours worked and wage computation. Any employers that seek to exclude workers from the FLSA’s coverage will be required to perform a classification analysis, disclose that analysis to the worker, and retain that analysis to give to WHD enforcement personnel who might request it. The proposal will also address burdens of proof when employers fail to comply with records and notice requirements. WHD also intends to propose modernizing certain recordkeeping requirements for live-in domestic employees and persons considered industrial homeworkers under the FLSA. WHD is considering allowing alternative methods to take the place of mandatory paper records that are currently required in most instances for employees who work under such arrangements, while still requiring an accurate record of hours worked.

Key Issues

The current recordkeeping regulations require covered employers to keep specified payroll records and other information but do not require that such information or other information regarding a worker’s employment or exemption status be disclosed to the worker. This is an issue of transparency and is critical to workers’ understanding of their legal rights and responsibilities.

Background Summary

Employers covered by the FLSA are currently required to provide notice regarding the Act and to keep records on wages, hours, and other items, as specified in recordkeeping regulations established to ensure compliance with the various provisions of the Act. Most of the information required to be kept is of the kind employers generally would maintain in ordinary business practices. Required records generally include the employee’s: name, address, date of birth (if under 19 years of age), hours worked per day and per week, regular rate of pay (non-overtime rate) when overtime is worked, amount of straight time earnings and overtime pay for each workweek, and deductions from or additions to pay. The regulations also specify the records an employer must keep in order to confirm that particular exemptions from some of the FLSA’s requirements may apply. Employers must keep additional information on certain employees who are home-based or work under uncommon pay arrangements or to whom lodging or other facilities are furnished or other special requirements apply.

Updating the recordkeeping requirements to promote transparency is expected to encourage greater levels of compliance by employers, to enhance awareness among workers of their status as employees or independent contractors and employee rights and entitlements to minimum wage and overtime pay, and to facilitate DOL enforcement.