DAYTON, OH – A Dayton, Ohio mental health and drug rehabilitation center has paid $48,698 in overtime back wages to 47 employees after an investigation by the U.S. Department of Labor Wage and Hour Division (WHD) found violations of the Fair Labor Standards Act (FLSA).

WHD investigators found Cornerstone Project LLC violated federal overtime provisions when the employer automatically deducted 30 minutes a day from employees' recorded work time for lunch breaks, without regard to whether workers actually took those breaks. This practice resulted in overtime violations when employees regularly worked through those breaks unpaid. WHD also cited the employer for recordkeeping violations for failing to record this work time.

"Employers must comply with federal laws designed to make sure employees receive the wages they have rightfully earned," said Wage and Hour District Director George Victory, in Columbus. "The Wage and Hour Division encourages all employers to review their pay practices and to use the wide variety of tools we offer, or to contact us directly to help them understand their obligations."

For more information about the FLSA, and other laws enforced by WHD, contact the Division's toll-free helpline at 866-4US-WAGE (487-9243). Employers who discover overtime or minimum wage violations may self-report and resolve those violations without litigation through the PAID program. Information is also available at http://www.dol.gov/whd including a search tool to use if you think you may be owed back wages collected by the Division.

SALT LAKE CITY, UT – The U.S. Department of Labor's Wage and Hour Division (WHD) is conducting a statewide wage survey in Utah to help establish prevailing wage rates as required under the Davis-Bacon and Related Acts (DBRA). WHD urges all highway construction employers in Utah to participate.

The survey will collect data on wages paid to employees on all highway construction projects in Utah that were active between January 1, 2018 through December 31, 2018. The information obtained through this survey will be used to establish prevailing wage rates as required under the DBRA. The survey is not limited to federally funded projects, and wage data should be submitted for all projects meeting the survey criteria, regardless of how they are funded.

"Participation in the survey will help level the playing field for all contractors bidding on federally funded construction projects. Davis-Bacon prevailing wage rates are most effective when they reflect the wages and fringe benefits paid to construction employees in the county in which they work," said Wage and Hour Division Southwest Regional Administrator Betty Campbell. "We need the full participation of Utah's construction industry to succeed in this effort."

WHD is sending notification letters and "WD-10" data collection forms to interested parties and contractors of which it is aware. Employers do not have to receive a letter to participate in the survey.  Participants may also complete the survey online. All responses must be postmarked by Sept. 27, 2019, to be included.

If you would like to participate, or have questions regarding the survey process and forms, contact Craig L. Jackson at (214) 749-2021.

MALVERN, PA – The U.S. Department of Labor is seeking current or former employees of American Future Systems - doing business as Progressive Business Publications - who may be owed a portion of $1,916,000 in back wages and liquidated damages recovered by the Department's Wage and Hour Division (WHD). American Future Systems is the parent company of Progressive Business Publications, a Malvern, Pennsylvania, direct-marketing company that publishes subscription-driven, business-to-business newsletters and other publications.

The Division estimates 8,382 individuals employed by the company from August 9, 2009, through January 3, 2016, at 18 call centers in Pennsylvania, New Jersey, and Ohio, may be eligible for payments. The Division provides its Workers Owed Wages search tool to assist workers owed back wages. If your contact information has changed since the period of the investigation, call 267-514-6072 or send an email to  WHDVM.PHILADELPHIAPADOPGR@dol.gov to provide an update.

The recovery is the result of a WHD investigation and U.S. District Court decision that found that American Future Systems failed to pay employees for compensable break time, which sometime brought wages below the federal minimum wage.

For more information about the FLSA and other federal wage laws, call the Division's toll-free helpline at 866-4US-WAGE (487-9243). Information also is available at http://www.dol.gov/whd. Employers who discover overtime or minimum wage violations may self-report and resolve those violations without litigation through the PAID program.

DENVER, CO - The U.S. Department of Labor's Wage and Hour Division (WHD) will present an educational forum about developments in its policies and regulations, and its Payroll Audit Independent Determination Program (PAID), in Denver, Colorado, on April 3, 2019.

PAID facilitates resolution of potential overtime and minimum wage violations under the Fair Labor Standards Act (FLSA). The program seeks to resolve such claims quickly and without litigation, to improve employers' compliance with overtime and minimum wage obligations, and to ensure that more employees receive the back wages they are owed – faster.

WHAT: Wage and Hour Division Educational Forum
Payroll Audit Independent Determination Program (PAID) Educational Forum

WHEN: April 3, 2019
9:30 a.m. to 11:00 a.m. MDT

WHERE: Mile High United Way Co.
Bank Leadership Center
PCL Conference Rooms
711 Park Ave. West
Denver, CO 80205

Attendance is free, but pre-registration is required. Complete advance registration.

WASHINGTON, DC – The U.S. Department of Labor announced today that it has issued three new opinion letters that address compliance issues related to the Fair Labor Standards Act (FLSA). An opinion letter is an official, written opinion by the Department's Wage and Hour Division (WHD) on how a particular law applies in specific circumstances presented by the individual person or entity that requested the letter.

The opinion letters issued today are:

• FLSA2019-3, addressing whether a youth  residential care facility may implement an "8 and 80" overtime pay system;
• FLSA2019-4, addressing the application of the teacher exemption to Nutritional Outreach Instructors employed by a public university; and
• FLSA2019-5, addressing the application of the agricultural exemption to the freezing, cutting, packing, storing, and/or transportation of a farm's own fruit, vegetable, or meat products.

The Department offers a search function allowing users to search existing opinion letters by keyword, year, topic, and a variety of other filters; and encourages the public to submit requests for opinion letters to WHD to obtain an opinion or to determine whether existing guidance already addresses their questions. The Division exercises its discretion in determining whether and how it will respond to each request. 

WASHINGTON, DC – Today, the U.S. Department of Labor announced a proposed rule to revise and clarify the responsibilities of employers and joint employers to employees in joint employer arrangements. The Department has not meaningfully revised its joint employer regulation since 1958.

The Fair Labor Standards Act (FLSA) allows joint employer situations where an employer and a joint employer are jointly responsible for the employee's wages. This proposal would ensure employers and joint employers clearly understand their responsibilities to pay at least the federal minimum wage for all hours worked and overtime for all hours worked over 40 in a workweek.

"This proposal will reduce uncertainty over joint employer status and clarify for workers who is responsible for their employment protections," said Secretary of Labor Alexander Acosta. "Providing public notice and comment is the best way to move forward with another significant deregulatory proposal."

In 2017, the Department withdrew the previous administrations sub-regulatory guidance regarding joint employer status that did not go through the rulemaking process that includes public notice and comment.

The Department proposes a clear, four-factor test - based on well-established precedent - that would consider whether the potential joint employer actually exercises the power to:

• Hire or fire the employee;
• Supervise and control the employee's work schedules or conditions of employment;
• Determine the employee's rate and method of payment; and
• Maintain the employee's employment records.

"The proposal explains the statutory basis for joint liability, helping to ensure that the Department's joint employer guidance is fully consistent with the text of the FLSA," said Keith Sonderling, Acting Administrator for the Department's Wage and Hour Division. "The proposed changes would provide courts with a clearer method for determining joint employer status, promote greater uniformity among court decisions, and reduce litigation."

The proposal also includes a set of joint employment examples for comment that would further assist in clarifying joint employer status. Examples follow:

    (1) Example: An individual works 30 hours per week as a cook at one restaurant establishment, and 15 hours per week as a cook at a different restaurant establishment affiliated with the same nationwide franchise. These establishments are locally owned and managed by different franchisees that do not coordinate in any way with respect to the employee. Are they joint employers of the cook?

    Application: Under these facts, the restaurant establishments are not joint employers of the cook because they are not associated in any meaningful way with respect to the cook's employment. The similarity of the cook's work at each restaurant, and the fact that both restaurants are part of the same nationwide franchise, are not relevant to the joint employer analysis, because those facts have no bearing on the question whether the restaurants are acting directly or indirectly in each other's interest in relation to the cook.

    (2) Example: An individual works 30 hours per week as a cook at one restaurant establishment, and 15 hours per week as a cook at a different restaurant establishment owned by the same person. Each week, the restaurants coordinate and set the cook's schedule of hours at each location, and the cook works interchangeably at both restaurants. The restaurants decided together to pay the cook the same hourly rate. Are they joint employers of the cook?

    Application: Under these facts, the restaurant establishments are joint employers of the cook because they share common ownership, coordinate the cook's schedule of hours at the restaurants, and jointly decide the cook's terms and conditions of employment, such as the pay rate. Because the restaurants are sufficiently associated with respect to the cook's employment, they must aggregate the cook's hours worked across the two restaurants for purposes of complying with the act.

    (3)  Example: An office park company hires a janitorial services company to clean the office park building after-hours. According to a contractual agreement with the office park and the janitorial company, the office park agrees to pay the janitorial company a fixed fee for these services and reserves the right to supervise the janitorial employees in their performance of those cleaning services. However, office park personnel do not set the janitorial employees' pay rates or individual schedules and do not in fact supervise the workers' performance of their work in any way. Is the office park a joint employer of the janitorial employees?

    Application: Under these facts, the office park is not a joint employer of the janitorial employees because it does not hire or fire the employees, determine their rate or method of payment, or exercise control over their conditions of employment. The office park's reserved contractual right to control the employee's conditions of employment does not demonstrate that it is a joint employer.

    (4) Example: A country club contracts with a landscaping company to maintain its golf course. The contract does not give the country club authority to hire or fire the landscaping company's employees or to supervise their work on the country club premises. However, in practice a club official oversees the work of employees of the landscaping company by sporadically assigning them tasks throughout each workweek, providing them with periodic instructions during each workday, and keeping intermittent records of their work. Moreover, at the country club's direction, the landscaping company agrees to terminate an individual worker for failure to follow the club official's instructions. Is the country club a joint employer of the landscaping employees?

    Application: Under these facts, the country club is a joint employer of the landscaping employees because the club exercises sufficient control, both direct and indirect, over the terms and conditions of their employment. The country club directly supervises the landscaping employees' work and determines their schedules on what amounts to a regular basis. This routine control is further established by the fact that the country club indirectly fired one of landscaping employees for not following its directions.

    (5)  Example: A packaging company requests workers on a daily basis from a staffing agency. The packaging company determines each worker's hourly rate of pay, supervises their work, and uses sophisticated analysis of expected customer demand to continuously adjust the number of workers it requests and the specific hours for each worker, sending workers home depending on workload. Is the packaging company a joint employer of the staffing agency's employees?

    Application: Under these facts, the packaging company is a joint employer of the staffing agency's employees because it exercises sufficient control over their terms and conditions of employment by setting their rate of pay, supervising their work, and controlling their work schedules.

    (6)  Example: An association, whose membership is subject to certain criteria such as geography or type of business, provides optional group health coverage and an optional pension plan to its members to offer to their employees. Employer B and Employer C both meet the association's specified criteria, become members, and provide the association's optional group health coverage and pension plan to their respective employees. The employees of both B and C choose to opt in to the health and pension plans. Does the participation of B and C in the Association's health and pension plans make the association a joint employer of B's and C's employees, or B and C joint employers of each other's employees?

    Application: Under these facts, the association is not a joint employer of B's or C's employees, and B and C are not joint employers of each other's employees. Participation in the association's optional plans does not involve any control by the association, direct or indirect, over B's or C's employees. And while B and C independently offer the same plans to their respective employees, there is no indication that B and C are coordinating, directly or indirectly, to control the other's employees. B and C are therefore not acting directly or indirectly in the interest of the other in relation to any employee.

    (7) Example: Entity A, a large national company, contracts with multiple other businesses in its supply chain. As a precondition of doing business with A, all contracting businesses must agree to comply with a code of conduct, which includes a minimum hourly wage higher than the federal minimum wage, as well as a promise to comply with all applicable federal, state, and local laws. Employer B contracts with A and signs the code of conduct. Does A qualify as a joint employer of B's employees?

    Application: Under these facts, A is not a joint employer of B's employees. Entity A is not acting directly or indirectly in the interest of B in relation to B's employees - hiring, firing, maintaining records, or supervising or controlling work schedules or conditions of employment. Nor is A exercising significant control over Employer B's rate or method of pay - although A requires B to maintain a wage floor, B retains control over how and how much to pay its employees. Finally, because there is no indication that A's requirement that B commit to comply with all applicable federal, state, and local law exerts any direct or indirect control over B's employees, this requirement has no bearing on the joint employer analysis.

    (8) Example: Franchisor A is a global organization representing a hospitality brand with several thousand hotels under franchise agreements. Franchisee B owns one of these hotels and is a licensee of A's brand. In addition, A provides B with a sample employment application, a sample employee handbook, and other forms and documents for use in operating the franchise. The licensing agreement is an industry-standard document explaining that B is solely responsible for all day-to-day operations, including hiring and firing of employees, setting the rate and method of pay, maintaining records, and supervising and controlling conditions of employment. Is A a joint employer of B's employees?

    Application: Under these facts, A is not a joint employer of B's employees. A does not exercise direct or indirect control over B's employees. Providing samples, forms, and documents does not amount to direct or indirect control over B's employees that would establish joint liability.

    (9) Example: A retail company owns and operates a large store. The retail company contracts with a cell phone repair company, allowing the repair company to run its business operations inside the building in an open space near one of the building entrances. As part of the arrangement, the retail company requires the repair company to establish a policy of wearing specific shirts and to provide the shirts to its employees that look substantially similar to the shirts worn by employees of the retail company. Additionally, the contract requires the repair company to institute a code of conduct for its employees stating that the employees must act professionally in their interactions with all customers on the premises. Is the retail company a joint employer of the repair company's employees?

    Application: Under these facts, the retail company is not a joint employer of the cell phone repair company's employees. The retail company's requirement that the repair company provide specific shirts to its employees and establish a policy that its employees to wear those shirts does not, on its own, demonstrate substantial control over the repair company's employees' terms and conditions of employment. Moreover, requiring the repair company to institute a code of conduct or allowing the repair company to operate on its premises does not make joint employer status more or less likely under the act. There is no indication that the retail company hires or fires the repair company's employees, controls any other terms and conditions of their employment, determines their rate and method of payment, or maintains their employment records.

More information about the proposed rule is available at www.dol.gov/whd/flsa/jointemployment2019. The Department encourages any interested members of the public to submit comments about the proposed rule electronically at a www.regulations.gov, in the rulemaking docket RIN 1235-AA26. Once the rule is published in the Federal Register, the public will have 60 days to submit comments for those comments to be considered.

NEW YORK, NY – Tishman Interiors Corp. - the prime contractor for a renovation project at the Federal Reserve Bank of New York - has paid $420,335 in back wages to resolve violations of federal wage laws following a U.S. Department of Labor Wage and Hour Division (WHD) investigation.

WHD found Tishman, which served as the bank's construction manager on the federally funded project, violated the Davis-Bacon and Related Acts (DBRA), the Contract Work Hours and Safety Standards Act (CWHSSA), and the Copeland Act. The company subcontracted electrical and cable installation work to subcontractors Alan Joel Communications, Crewforce, and Teksystems Management.

Investigators found the bank failed to include DBRA provisions and required wage rates in its contract with Tishman. This omission led to Tishman and the three subcontractors paying their employees at hourly rates lower than the prevailing wages for the work they performed, a DBRA violation. WHD also found all four employers violated the CHWSSA when they failed to pay required prevailing wages for overtime when employees worked more than 40 hours in a workweek. Their failure to prepare and maintain certified payroll records and to sign compliance statements in the payrolls resulted in Copeland Act violations.

Under the settlement, Tishman has paid $194,822 to seven Allan Joel employees, $120,560 to 10 Crewforce employees, $104,064 to six Teksystems Management employees, and $888 to seven of its own employees and pledged future compliance with the DBRA, CWHSSA, and Copeland Act.

"Any party who advertises for federally funded construction bids must include all applicable rates and requirements," said Wage and Hour Division Deputy Regional Administrator Maria Rosado. "Contractors also bear a responsibility to exercise due diligence when bidding and working on federal contracts. We will continue our education and enforcement efforts to level the playing field for contractors who follow the rules."

The Wage and Hour Division engages in a robust educational outreach program, including an annual series of Prevailing Wage Seminars, to ensure federal contractors and contracting agencies have the tools they need to comply with applicable laws.

For more information about the DBRA, CWHSSA, Copeland Act, and other laws enforced by the Division, contact the Division's toll-free helpline at 866-4US-WAGE (487-9243) or visit the Division's web site. Employers who discover overtime or minimum wage violations may self-report and resolve those violations without litigation through the PAID program. Information is also available at https://www.dol.gov/whd.

WASHINGTON, DC – The U.S. Department of Labor today announced a proposed rule to clarify and update the regulations governing regular rate requirements for the first time in more than 50 years.

Regular rate requirements define what forms of payment employers include and exclude in the "time and one-half" calculation when determining workers' overtime rates.

Under current rules, employers are discouraged from offering more perks to their employees as it may be unclear whether those perks must be included in the calculation of an employees' regular rate of pay.  The proposed rule focuses primarily on clarifying whether certain kinds of perks, benefits, or other miscellaneous items must be included in the regular rate. Because these regulations have not been updated in decades, the proposal would better define the regular rate for today's workplace practices. 

"The regular rate proposal would provide clarity for employers to allow them to add more benefits to their employees without unknown overtime consequences or litigation," said Keith Sonderling, Acting Administrator for the Department's Wage and Hour Division. "This proposed rule offers a positive path forward to employers and employees alike."

The Department proposes clarifications to confirm that employers may exclude the following from an employee's regular rate of pay:

• the cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes, and employee discounts on retail goods and services;
• payments for unused paid leave, including paid sick leave;
• reimbursed expenses, even if not incurred "solely" for the employer's benefit;
• reimbursed travel expenses that do not exceed the maximum travel reimbursement under the Federal Travel Regulation System and that satisfy other regulatory requirements;
• discretionary bonuses, by providing additional examples and clarifying that the label given a bonus does not determine whether it is discretionary;
• benefit plans, including accident, unemployment, and legal services; and
• tuition programs, such as reimbursement programs or repayment of educational debt.

The proposed rule also includes additional clarification about other forms of compensation, including payment for meal periods, "call back" pay, and others.

More information about the proposed rule is available at www.dol.gov/whd/overtime/regularrate2019.htm. The Department encourages interested members of the public to submit comments about the proposed rule electronically at www.regulations.gov, in the rulemaking docket RIN 1235-AA24. Comments must be submitted by 11:59 pm on May 28, 2019 in order to be considered.

HINESVILLE, GA – The Liberty County Board of Commissioners will pay $209,106 in back wages to 131 employees for violations of the overtime and recordkeeping provisions of the Fair Labor Standards Act (FLSA) found in a U.S. Department of Labor’s Wage and Hour Division (WHD) investigation.

WHD investigators found the Hinesville, Georgia-based employer failed to pay courthouse guards, jail guards, and patrolmen for all the hours that they worked, including mandatory meetings, trainings, and occasions when they covered shifts for other employees. These unpaid hours resulted in overtime violations when the employees worked more than 40 hours in a workweek. The employer’s failure to keep accurate daily and weekly records of the hours employees worked also resulted in a FLSA recordkeeping violation.

“The Wage and Hour Division works to ensure that employees receive the wages they rightfully earned, and that employers compete on a level playing field,” said Wage and Hour Division District Director Eric Williams, in Atlanta. “We encourage all employers to reach out to us and to use the wide variety of compliance tools we offer to help them understand their responsibilities. Violations like those found in this investigation can be avoided.”

For more information about the FLSA and other laws enforced by the Wage and Hour Division, contact the toll-free helpline at 866-4US-WAGE (487-9243). Information is also available at https://www.dol.gov/whd.

PROVIDENCE, RI – Following an investigation by the U.S. Department of Labor’s Wage and Hour Division (WHD), the Department of Labor has filed suit against Madeira Restaurant Inc. and The Waterfront Restaurant and Lounge Inc. – operators of two East Providence, Rhode Island, restaurants – and their owner Albertino Milho and managers David Milho, and Karen DaSilva, alleging willful violations of the overtime and recordkeeping requirements of the Fair Labor Standards Act (FLSA). The Department is asking the court to order the defendants to pay $90,261 - $45,130 in back wages and an equal amount in liquidated damages – to 11 employees.

Filed in the U.S. District Court for the District of Rhode Island, the lawsuit charges that the defendants failed to pay employees overtime premiums when they worked more than 40 hours in a workweek. This included paying some employees with a check for their first 40 hours and in cash for hours above 40 at straight time, and paying other employees in cash for all their work hours at straight time.

The Department also alleges that the defendants failed to accurately record employees’ daily and weekly work hours and the cash payments they received.

“The defendants knew what the FLSA required of them yet intentionally disregarded or violated those requirements. In doing so, they not only deprived their employees of their hard-earned wages, they also undercut those competitors who choose to obey the law,” said Maia Fisher, the Department’s New England regional solicitor of labor.

“The U.S. Department of Labor’s Wage and Hour Division will hold accountable employers who engage in fraudulent schemes meant to circumvent the requirements of the law. We strive to level the playing field for law-abiding competitors in the restaurant industry,” said Wage and Hour Division District Director David Gerrain in Hartford.

The Department is also asking the court to permanently enjoin and restrain the defendants from future overtime and recordkeeping FLSA violations.

WHD’s Hartford District Office conducted the original investigation. The Department’s Office of the Solicitor in Boston is litigating the case.

The Department provides numerous resources and tools to help employers understand their responsibilities and comply with federal law, such as online videos, confidential calls, or in-person visits to local Division offices. Employers who discover overtime or minimum wage violations may self-report and resolve those violations without litigation through the PAID program.