직원 급여를 Hourly로 혹은 Salary로 주는것은 회사 재량일까?
아닙니다. 이렇게 하고 계시다면, 귀사는 지금 위험한 상태입니다.
Overtime을 계산하기 힘들어 한다거나, Overtime을 주기가 회사재정상 힘들어서 Salary로 급여를 책정하는 경우가 있다면, 이것은 연방정부및 주법에 저촉됩니다. 이런 경우, 적용을 받는것이 바로 FLSA규정입니다.
그렇다면 FLSA란 무엇인가?
The Fair Labor Standards Act of 1938[1] (abbreviated as FLSA; also referred to as the Wages and Hours Bill[2]) is a federal statute of the United States. The FLSA established a national minimum wage,[3] guaranteed 'time-and-a-half' for overtime in certain jobs,[4] and prohibited most employment of minors in "oppressive child labor," a term that is defined in the statute.[5] It applies to employees engaged in interstate commerce or employed by an enterprise engaged in commerce or in the production of goods for commerce,[6] unless the employer can claim an exemption from coverage
정부에서는 특별히 Overtime을 정당하게 주지 않는 고용주들을 불법검문까지 받을 수 있으므로 철저하게 준비해 놓아야 합니다.
Overtime을 주지 않는 사람들 즉, Salary를 받는 employee들은 특별한 자격이 있어야 합니다. 자격은 IT인 경우, Professional인 경우, 일반 Administrative인 경우, Executive인 경우등 직종에 따라서 다양합니다. 그러나 일반적으로는 아래사람들을 supevising하는 기능이 총 Job Duty중 50%가 넘어야 하며, 또 그 사람들에 대한 hiring, terminating, promotion 하는일에 영향력이 있어야 합니다. 직위 Title은 중요하지 않습니다. Exempt가 되는 Qualification이 없는데도 불구하고 Exempt로 구분해 놓은 경우를 misclassification이라고 합니다. 이 경우에 많은 소송건들이 발생하고 있습니다. 추후 중요한 소송건들의 예를 올려 놓도록 하겠습니다.
Hourly Rate이 비록 높다하더라도, 아래의 경우에 해당한다면, Overtime을 받을 수 있는 Non-Exempt로 구분해야 합니다. (예)
1. No authority to bind the company in matters of significance.
2. Directed by others to perform specified and identified tasks.
3. An assistant who has been delegated tasks and will have those tasks approved by the supervisor.
4. Decisions can be reversed by a supervisor.
5. It doesn’t matter if some of the duties are non-exempt. It must be a principal role and majority in terms of consistency.
executive exemption
A person employed in an executive capacity means any employee:
With respect to the requirement that management duties must be exercised over the entire enterprise or a customarily recognized department or subdivision thereof, it is important to note that the phrase "customarily recognized department or subdivision thereof" has a particular meaning. The phrase is intended to distinguish between " a mere collection of employees assigned from time to time to a specific job or series of jobs" and " a unit with permanent status and function." Thus, in order to meet the criteria of a managerial employee, one must be more than merely a supervisor of two or more employees. The managerial exempt employee must be in charge of the unit, not simply participate in the management of the unit.
The IWC Orders require as a basic condition for the executive exemption that the manager must supervise two or more employees. This may be one full-time and two half-time employees. It has been the experience of the DLSE that a managerial employee supervising as few as two employees rarely spends as much as 50% of his or her time primarily engaged in managerial duties.
Regarding the requirement for the exemption to apply that the employee "customarily and regularly exercises discretion and independent judgment," this phrase means the comparison and evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. The employee must have the authority or power to make an independent choice, free from immediate direction or supervision and with respect to matters of significance. With respect to the executive exemption, the most frequent cause of misapplication of the phrase "discretion and independent judgment" is the failure to distinguish discretion and independent judgment from the use of independent managerial skills. An employee who merely applies his or her memory in following prescribed procedures or determining which required procedure out of the company manual to follow, is not exercising discretion and independent judgment.
A person employed in an administrative capacity means any employee:
Following are examples of employees who might qualify for the exemption if, and only if, they meet the criteria set forth above:
Regarding the requirement for the exemption to apply that the employee "customarily and regularly exercises discretion and independent judgment," this phrase means the comparison and evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. The employee must have the authority or power to make an independent choice, free from immediate direction or supervision and with respect to matters of significance. With respect to the administrative exemption, this phrase has been most frequently misunderstood and misapplied by employers and employees alike in cases involving the following:
Caveat. As with any of the exemptions, job titles reflecting administrative classifications alone may not reflect actual job duties and therefore, are of no assistance in determining exempt or nonexempt status. The fact that an employee may have one of the job titles listed above is, in and of itself, of no consequence. The actual determination of exempt or nonexempt status must be based on the nature of the actual work performed by the individual employee.
Both federal law (Fair Labor Standards Act or FLSA) and state law (New York Minimum Wage Act and applicable regulations) generally require the payment of overtime wages for work performed after 40 hours per week. The FLSA and the State Minimum Wage Act exempt employees who work in a bona fide executive capacity from the overtime pay requirements.
If the criteria of the New York State exception match those in the FLSA, this Department usually applies the criteria consistently with the FLSA, its regulations, and interpretations issued by the U.S. Department of Labor.
To qualify for the Executive employee exception, an individual must meet all of the following tests:
The Employee’s primary duty consists of the management of the enterprise
The Employee customarily and regularly directs the work of two or more other employees
The Employee has the authority to hire or fire other employees
The Employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees have particular weight
The Employee customarily and regularly exercises discretionary powers
The Employee is paid on a salary basis of not less than $543.75 per week inclusive of board, lodging, or other allowances
What does “salary” mean?
Being paid on a “salary basis” means an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequent, basis. The predetermined amount cannot be reduced because of variations in the quality or quantity of the employee’s work. An exempt employee must receive the full salary for any week in which the employee performs any work, regardless of the number of days or hours worked.
What does “primary duty” mean?
"Primary duty" has been interpreted to mean the principal, main, major, or most important duty that the employee performs. A determination of an employee's primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee's job as a whole.
Additionally, for the purposes of the Hospitality and Building Service industries, the Department generally views an activity that constitutes 20 percent of an employee’s duties as being a primary duty.
What are “discretionary powers?”
Discretionary powers involve the exercise of discretion and independent judgment. In general, the exercise of discretion and judgment involves:
The comparison and evaluation of possible courses of conduct
Acting or making a decision after considering the possibilities
The term must be applied in the light of all the facts involved in the employee’s employment situation. It implies that the employee has authority to make an independent choice, free from immediate direction or supervision. Factors to consider include (but are not limited to):
• Does the employee formulate, affect, interpret, or implement policies or practices?
• Does the employee carry out major assignments in conducting the business?
• Does the employee’s work affect business operations to a substantial degree?
• Can the employee commit the employer in matters that have significant financial impact?
• Does the employee have authority to waive or deviate from established policies and procedures without prior approval?
If an employee’s decisions are revised or reversed after review, it does not mean that the employee is not exercising discretion and independent judgment. The exercise of discretion and independent judgment must be more than the use of skill in applying well-established techniques, procedures or specific standards described in manuals or other sources.
What does “customarily and regularly” mean?
The phrase “customarily and regularly” means more than occasional but less than constant. It includes work normally done every workweek, but does not include isolated or one-time tasks.
What does “two or more” mean?
The phrase “two or more other employees” means two full-time employees or their equivalent. For example, one full-time and two half-time employees are equivalent to two full-time employees. The supervision can be distributed among two, three, or more employees, but each employee who is seeking to be treated as an executive must customarily and regularly direct the work of two or more other full-time employees or the equivalent. For example, a department with five full-time nonexempt workers may have up to two exempt supervisors if each supervisor directs the work of two of those workers.
What does “particular weight” mean?
Factors to consider in determining whether an employee’s recommendations are given “particular weight” as to hiring, firing, advancement, promotion, or any other change of status include (but are not limited to):
Whether it is part of the employee’s job duties to make such recommendations
How often such recommendations are made, requested, and relied upon
Generally, an executive’s recommendations must pertain to employees whom the executive customarily and regularly directs. It does not include occasional suggestions.
An employee’s recommendations may still be deemed to have “particular weight” even if:
A higher level manager’s recommendation has more importance
the employee does not have authority to make the ultimate decision as to the employee’s change in status
What is the “management of the enterprise”?
Generally, “management” includes, but is not limited to, activities such as:
Interviewing, selecting, and/or training employees
Setting and adjusting pay and schedules;
Directing the work of employees
Maintaining production or sales records for use in supervision or control
Appraising employees’ productivity and efficiency for the purpose of recommending promotions or other changes in status
Handling employee complaints and grievances
Disciplining employees
Planning the work
Apportioning the work among the employees
Determining the type of materials, supplies, machinery, equipment or tools to be used or merchandise to be bought, stocked, and sold
Controlling the flow and distribution of materials or merchandise and supplies
Providing for the safety and security of the employees or the property
Planning and controlling the budget;
Monitoring or implementing legal compliance measures
Wage and Hour Division (WHD)
Compliance Assistance - Fair Labor Standards Act (FLSA)
Overview
The FLSA establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. Covered nonexempt workers are entitled to a minimum wage of not less than $7.25 per hour effective July 24, 2009. Overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek.
FLSA Minimum Wage: The federal minimum wage is $7.25 per hour effective July 24, 2009. Many states also have minimum wage laws. In cases where an employee is subject to both state and federal minimum wage laws, the employee is entitled to the higher minimum wage.
FLSA Overtime: Covered nonexempt employees must receive overtime pay for hours worked over 40 per workweek (any fixed and regularly recurring period of 168 hours — seven consecutive 24-hour periods) at a rate not less than one and one-half times the regular rate of pay. There is no limit on the number of hours employees 16 years or older may work in any workweek. The FLSA does not require overtime pay for work on weekends, holidays, or regular days of rest, unless overtime is worked on such days.
Hours Worked (PDF): Hours worked ordinarily include all the time during which an employee is required to be on the employer’s premises, on duty, or at a prescribed workplace.
Recordkeeping (PDF): Employers must display an official poster outlining the requirements of the FLSA. Employers must also keep employee time and pay records.
Child Labor: These provisions are designed to protect the educational opportunities of minors and prohibit their employment in jobs and under conditions detrimental to their health or well-being.
Wage and Hour Division (WHD)
Handy Reference Guide to the Fair Labor Standards Act
(For best printout, see the PDF version.)
Revised September 2010
The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and in Federal, State, and local governments.
The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) administers and enforces the FLSA with respect to private employment, State and local government employment, and Federal employees of the Library of Congress, U.S. Postal Service, Postal Rate Commission, and the Tennessee Valley Authority. The FLSA is enforced by the U.S. Office of Personnel Management for employees of other Executive Branch agencies, and by the U.S. Congress for covered employees of the Legislative Branch.
Special rules apply to State and local government employment involving fire protection and law enforcement activities, volunteer services, and compensatory time off instead of cash overtime pay.
Covered, nonexempt workers are entitled to a minimum wage of $7.25 per hour effective July 24, 2009. Special provisions apply to workers in American Samoa and the Commonwealth of the Northern Mariana Islands. Nonexempt workers must be paid overtime pay at a rate of not less than one and one-half times their regular rates of pay after 40 hours of work in a workweek.
Wages required by the FLSA are due on the regular payday for the pay period covered. Deductions made from wages for such items as cash or merchandise shortages, employer-required uniforms, and tools of the trade, are not legal to the extent that they reduce the wages of employees below the minimum rate required by the FLSA or reduce the amount of overtime pay due under the FLSA.
The FLSA contains some exemptions from these basic standards. Some apply to specific types of businesses; others apply to specific kinds of work.
While the FLSA does set basic minimum wage and overtime pay standards and regulates the employment of minors, there are a number of employment practices which the FLSA does not regulate.
For example, the FLSA does not require:
1. vacation, holiday, severance, or sick pay;
2. meal or rest periods, holidays off, or vacations;
3. premium pay for weekend or holiday work;
4. pay raises or fringe benefits; or
5. a discharge notice, reason for discharge, or immediate payment of final wages to terminated employees.
The FLSA does not provide wage payment or collection procedures for an employee뭩 usual or promised wages or commissions in excess of those required by the FLSA. However, some States do have laws under which such claims (sometimes including fringe benefits) may be filed.
Also, the FLSA does not limit the number of hours in a day or days in a week an employee may be required or scheduled to work, including overtime hours, if the employee is at least 16 years old.
The above matters are for agreement between the employer and the employees or their authorized representatives.
** 상기 내용은 무단 복제를 금합니다.
** 상기 내용에 따른 모든 Liability는 본인에게 있음을 알려드립니다.
** 추가 질문이 있는 경우에는 아래에 댓들을 달아주시면 회신드리겠습니다.
