Wage and Hour Compliance - Jackson Lewis

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#17O for Technologists and Technicians. Excerpts are below. Nurses “To qualify for the learned professional employee exemption, all of the following tests must be met: “The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week; The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment; The advanced knowledge must be in a field of science or learning; and The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. “Registered nurses who are paid on an hourly basis should receive overtime pay. However, registered nurses who are registered by the appropriate State examining board generally meet the duties requirements for the learned professional exemption, and if paid on a salary basis of at least $455 per week, may be classified as exempt. “Licensed practical nurses and other similar health care employees, however, generally do not qualify as exempt learned professionals, regardless of work experience and training, because possession of a specialized advanced academic degree is not a standard prerequisite for entry into such occupations, and are entitled to overtime pay.” Technologists and Technicians “Technologists and technicians, such as engineering technicians, ultrasound technologists, licensed veterinary technicians, avionics technicians and other similar employees are not exempt under Section 13(a)(1) from the minimum wage and overtime requirements of the FLSA because they generally do not meet the requirements for the learned professional exemption (see above). “Technologists and technicians do not meet these requirements for the learned professional exemption because they do not work in occupations that have attained recognized professional status, which requires that an advanced specialized academic degree is a standard prerequisite for entrance into the profession.” (www.wagehour.dol.gov). Included in the new regulations is a “safe harbor” provision that will preserve an employee’s exempt status in the event impermissible deductions are made, replacing the so-called “window of correction” for improper deductions. An exempt employee’s salary basis will not be defeated if the employer: (a) has a “clearly communicated” policy prohibiting improper deductions, including a complaint mechanism; (b) reimburses employees for any improper deductions; and (c) makes a good faith commitment to comply in the future. This safe harbor is not available, however, if the employer willfully violates the policy by continuing to make improper deductions after receiving employee complaints. For a sample “safe harbor” policy, or assistance with compliance efforts, please contact the attorney with whom you regularly work, or the Jackson Lewis Wage and Hour Compliance Practice Area Coordinators: Paul Siegel, (631) 247-4605, SiegelP@jacksonlewis.com; Lee Schreter, (404) 586-1827, SchreteL@jacksonlewis.com. 2 Federal Appeals Court Changes Rule on “Companionship Services” Exemption for Home Healthcare Workers T reading into new territory on wage and hour law for the home health care industry, a federal appeals court in New York has ruled that home care workers employed by third parties to provide in-home companionship services are covered by the overtime and minimum wage provisions of the Fair Labor Standards Act. Parting ways with all other federal appeals courts, the U. S. Court of Appeals for the Second Circuit determined that the regulation issued by the Department of Labor exempting home heath care aides employed by third-party companies or agencies is unenforceable. For employers of home health aides in New York, Connecticut and Vermont, home care workers now will be entitled to overtime compensation for hours worked in excess of 40 in a work week based on their regular rate of pay. [Coke v. Long Island Care At Home, Ltd., No. 03-7666 (2d Cir. July 22, 2004).] A “home health-care attendant” brought this selftitled “test case” with the support of legal counsel from the Service Employees International Union. She alleged she was denied overtime and a minimum wage by her employer, and she was seeking to invalidate FLSA regulations regarding the exemption for companionship services. The FLSA requires that employers pay domestic service hourly employees overtime pay at the rate of one and one-half times their regular wage for hours worked in excess of forty in any single work week. However, the FLSA exempts from overtime pay employees who engage in “babysitting” and “companionship services.” Specifically, the exemp-
tion applies to “any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are delimited by regulations of the Secretary [of Labor]).” The regulations define domestic service employment as “services of a household nature performed by an employee in or about a private home (permanent or temporary) of the person by whom he or she is employed.” Companionship services are defined by the regulations as “those services which provide fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. They may also include the performance of general household work: Provided, however, [t]hat such work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked.” Prior to this decision, employees of third-party health care providers of companionship services to the aged and the infirm in private homes were not covered by the FLSA under this exemption, and their employers were not required to pay them overtime pay based on their regular rate of pay for hours worked in excess of 40 per week. [Note: State laws, such as the New York wage and hour law, require that such employees be compensated at the rate of time and one half the minimum wage for all hours worked over 40 in a work week.] However in this case, the Second Circuit reversed the decision of the United States District Court for the Eastern District, which had deferred to both the federal and state regulations and rejected the individual’s claim. In contrast to the trial court, the appeals court examined the enforceability of the Department of Labor regulations under two different levels of agency deference. The appeals court granted deference to the first regulation defining the companionship exemption, upholding and affirming the enforceability of the regulation. However, the appeals court found the second regulation, which addressed the application of the exemption to employees of third parties, unenforceable. Such an application of the regulation is contrary to its intention and inconsistent with other regulations and agency positions, the court said. Since the intention of the regulation – continued on next page Jackson Lewis e-Subscription Services Sign up now to receive Jackson Lewis email updates on workplace law developments. SUBSCRIBE ONLINE: go to myupdates.jacksonlewis.com and complete the electronic form for instant subscription service. or COMPLETE THIS FORM and mail or fax back to Jackson Lewis (see below): E-mail Address (for receiving updates) First Name M.I. Last Name Job Title Company Mailing Address City State/Province Zip/Postal – Phone ( ) Fax ( ) Company Website Industry Type SIC Code (if known) NAICS code (if known) Are you an attorney Yes No BY FAX: Jackson Lewis (914) 514-6072 Attention: Ms. Leslie Davis BY MAIL: Ms. Leslie Davis Jackson Lewis One North Broadway, 15th Floor White Plains, NY 10601 3
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Page 7 and 8: The final regulations contain exten

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