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Tuesday, 27 October 2015
Is The Township Exempt From The Law?



http://www.hamiltonnj.com/filestorage/228428/228430/228673/229195/229197/2015_Councilman_Meara's_Budget_Notes-3-17-15.pdf  From the Township of Hamilton website: Budgets 2015





Is The Township Exempt From The Law?




As the elected officials and their directors received raises these past years, the summer help was paid below minimum wage. (see files from the twp website) In 2014, the N.J. State minimum wage was raised to $8.25. (http://www.dol.gov/whd/state/stateMinWageHis.htm) As you can see, these township employees were paid much less than that. 


 The 1996 Amendments to the FLSA allow employers to pay a youth minimum wage of not less than $4.25 an hour to employees who are under 20 years of age during the first 90 consecutive calendar days after initial employment. The law contains certain protections for employees that prohibit employers from displacing any employee in order to hire someone at the youth minimum wage. This fact sheet provides general answers to questions that may arise about the youth wage provisions. Are all these people listed below the age of 20? We hope so. These lists do not demonstrate that these are "youth jobs". They are listed as summer employees, not farm jobs.


The youth minimum wage is authorized by Section 6(g) of the FLSA, as amended by the 1996 FLSA Amendments. The law allows employers to pay employees under 20 years of age a lower wage for a limited period -- 90 calendar days, not work days -- after they are first employed. Any wage rate above $4.25 an hour may be paid to eligible workers during this 90-day period.


In prosecution of wage and hour violations, the stakes are getting personal. In several recent cases, the government has penalized company owners and officers for failing to pay overtime – imposing stiff fines and even imprisonment.





Unless an exception applies, your employer must pay you at least the federal or state minimum wage, whichever is higher. If you qualify for minimum wage and your employer pays you less than the mandated amount, you can file a wage claim or lawsuit against your employer.


If the federal labor department agrees with your claim, it can order your employer to pay you back wages plus liquidated damages. If your employer intentionally broke the law, it can face criminal prosecution plus a fine of up to $10,000 for the first violation. State penalties vary; however, they generally include paying back wages plus liquidated damages and applicable court costs and attorney fees.


In one case, the president of a Minnesota sheetrock company was sentenced to two years in jail and a potential fine of $3.3 million for intentionally underpaying employee overtime and union pension and benefit contributions.


In another recent case, the owners and officers of an Illinois security company were fined over $200,000, constituting back wages and liquidated damages, for violating overtime and record keeping provisions. 


Under the Fair Labor Standards Act (FLSA), "any employer" who violates minimum wage or unpaid overtime compensation laws may be liable for both the shortfall and liquidated damages, which means double the damages. The FLSA definition of "employer" can be very broad. Along with supervisors and high-ranking executives, it can also include officers and directors.


To avoid both FLSA violations and personal liability, employers need to be sure they comply with all the relevant minimum wage, overtime, and other salary- and benefit-related regulations and agreements. Otherwise, they may find themselves paying a steep price.  



An employer may not misclassify its workers as independent contractors in order to avoid paying them required wages under the FLSA," said Thomas Gauza, district director of the US Labor Department Wage and Hour Division in Chicago. "The Department of Labor is committed to ensuring that all workers receive their rightfully earned wages, and the resolution of this lawsuit demonstrates that we will use all available enforcement tools to protect workers against exploitation and ensure compliance with the law."


The Wage and Hour Division of the Department of Labor conducts investigations of alleged FLSA violations. When, pursuant to such an investigation, the Department of Labor decides a company or entity is not in compliance with FLSA, there are several ways employee back wages can be recovered: 


The Wage and Hour Division may supervise payment of back wages. The Secretary of Labor may bring suit for back wages and an equal amount as liquidated damages. 

An employee may file a private suit for back pay and an equal amount as liquidated damages, plus attorney's fees and court costs.

The Secretary of Labor may obtain an injunction to restrain any person from violating FLSA, including the unlawful withholding of proper minimum wage and overtime pay. 

When it comes to recovery of back pay, there is a two-year statute of limitations, except in the case of a willful violation, where the statute of limitations is three years. When employers are found to willfully violate FLSA, they can also face criminal prosecution and fines up to $10,000. Upon a second conviction, employers could face imprisonment. 



In order to stay out of trouble, employers should do the following to ensure they are paying workers properly:


Classify employees properly – Determining who is eligible for overtime isn't always straightforward. In the International Detective & Protective Services case, Judge Kendall pointed to several factors that employers need to consider when deciding if workers are employees or independent contractors, including: control over the manner and method employees work, opportunities for profit or loss, investment in equipment, special skills of workers, permanency of the relationships, and whether services provided by workers were an integral part of the business.


Know state laws – Along with federal laws, some states also have broad definitions of who qualifies as an employer under state wage and hour laws. This could increase liability at the state level. For example, under New Jersey's Wage and Hour Law, an "employer includes any individual, partnership, association, corporation, or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee." Employers should consult with legal counsel to understand who may be liable for overtime infractions, so they can plan accordingly.


Review payroll practices and job classifications – It is advisable for employers to periodically review how employees track their hours. Laws change, job classifications get reworked, and new technology can make the process easier and less prone to errors.


Conduct audits – In addition to implementing solid overtime and time-keeping policies, companies should also routinely conduct audits. A spot check of one site or department may reveal that employees are not tracking hours properly or that supervisors are not following established procedures.


Be particularly careful with union employees – At union shops, the number of hours that employees work is not just reflected in their paychecks, it can also count for contributions to pension and benefits funds. As in the case of Franklin Drywall, employers can get into even more trouble when they shortchange those funds. If you have union employees, pay extra attention to how those employees' hours are tracked.


Executives and officers put a great deal of themselves into their businesses. They should be sure to spend some of their time making sure overtime and payroll are correctly managed; otherwise, they could end up paying fines and spending time in jail. 




Posted by tammyduffy at 7:57 AM EDT

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