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Features - Human Resources

Don’t be unfair to your employees by violating the Fair Labor Standards Act.

July 25, 2011
Steven Cesare, Ph.D.

The Fair Labor Standards Act (FLSA) is one of those laws that most landscapers have never heard about by name, but are constantly aware of, due to its widespread effect on them. This law addresses numerous compensation issues that affect all employers, especially landscapers, including:  overtime, travel time, training time and hourly versus salary status.  

It is critical for landscapers to know what is and what is not legally required (e.g., vacations, holiday pay, discharge notice) by the FLSA, and how it corresponds to respective state laws.

To that end, this article provides basic information outlining the penalties associated with FLSA violations, summarizes common FLSA violations and presents best-in-class practices to help ensure legal compliance.
Common violations include: Not paying for unapproved overtime, allowing employees to waive their overtime pay rate, not paying for travel time and not defining the workweek.

Penalties. When federal investigators encounter FLSA violations, they often recommend changes in employment practices to bring the employer into compliance, and require payment of back wages for up to three years due to employees, an equal amount in liquidated damages and attorneys’ fees. Beyond those penalties, willful violators may be prosecuted criminally and fined up to $10,000, and a second conviction can result in imprisonment.
Employers who willfully or repeatedly violate the minimum wage or overtime pay requirements are subject to civil money penalties of up to $1,100 per violation.

Best-in-Class Practices.  These best-in-class practices can help landscapers minimize exposure to violations:
•    Employee handbook: Clearly identify all relevant FLSA guidelines, related company policies, and legally-compliant compensation practices in their employee handbook.  
•    Time sheet attestations: Should show employees: (a) accurate number of hours worked during this pay period, (b) took the required meal period each day during this pay period and (c) were not injured at work during this pay period.  
•    Classification analysis: Conduct rigorous and well-documented FLSA exemption analyses (e.g., salary test and duties test) on all positions claimed to be exempt.  
•    Record keeping: Maintain the 14 types of payroll records required by the Department of Labor for each non-exempt employee and retain all payroll records for three years and records on which wage computations (e.g., time sheets, wage rate table, wage deductions) are based for two years.

Summary. While landscapers may have a basic understanding of compensation guidelines, it is in their best interest to become familiar with the FLSA as well as their respective state wage and hour laws. This can save landscapers time, worry and legal costs associated with FLSA non-compliance. L&L

The author is an industrial psychologist with the Harvest Group, a landscape consulting group. You can send him your questions at scesare@giemedia.com.