Top Ten Common FLSA Mistakes

Stanley P. Santire, JD

 1. Falling in Love with the Word “Salary”:

-          To be exempt, must be salaried.

-          But salary does not make them exempt!

2. Falling in Love with Job Titles: 

            -  Job Duties, not Job Titles test, determine exemption.

-  “executive assistants,” “coordinators,” and “assistant supervisors”

3.  Docking Exempt Employees Pay for Absences of Less Than a Full Day:

- Except for FMLA. If allow exempt employees unpaid leave of less than one day, automatically become nonexempt. Use of vacation pay or paid leave banks for leaves of less than one day can jeopardize exempt  status.

4.  Docking Exempt Employees Pay for Absences of Less Than a Full Work Week for Jury/Witness Duty, Lack of   Work, Military Duty or some types of suspension:

- If work one hour, must pay full week.

5.  Not Paying for Early Clock-In or Late Clock-Out time: 

-  DOL investigators assume a nonexempt employee is working if they see evidence of non-regular shift time. Can round off to nearest 5 or 15 minutes – be consistent.

6.  Not Paying for Travel (i.e., non-commute) Time:

-  If nonexempt employees travel for work related reasons during regular work hours, even on non-regular workdays, pay them! 

7.  Not paying for Training Time:  

- Unless attendance at a training session is (1) outside regular working hours, (2) voluntary, (3) the subject matter of the training is not directly related to the job, AND (4) the employee does not do any “real” or productive work during the attendance----pay nonexempt!

8. Not Paying Employees for Breaks of Fewer Than 20 Minutes: 

- DOL investigators look for it; cannot dock nonexempt employees for telephone, smoking, eye-exercise or other breaks where the break is less than 20 minutes.

9. Not Paying Employees for Breaks of 30 Minutes (or more) When the “Break” Is Restricted:

 - If the break is restricted, such as “stay here at this desk and answer the phone if it rings – otherwise you’re on break” – then pay nonexempt.

10. Not Counting Shift Differentials, Commissions, and Non-Discretionary Bonuses In Determining the “Regular Rate” of  Pay For Overtime Calculations:

- Although this can get complex, generally you must consider these factors when calculating the regular rate for overtime purposes.

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