W2 Issues/Concerns

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Check out our weekly blog posts and see the latest news and discussions happening in the HR world of business.

In the News: Violators of Fair Labor Standards Act now more likely to face jail time

*** Before we delve into the wage and hour rules of the Fair Labor Standards Act, we wanted to take the opportunity to remind companies to pay employees during the “fall back” hour. Per the Fair Labor Standards Act, a company may owe extra compensation — either regular or over-time– for any employee who works an overnight shift that includes the extra hour. For example, an employee who worked from 9pm on Saturday, November 1 to 7 am on Sunday, November 2nd is entitled to 11 hours of pay, versus their normal 10 hours of pay.

For more information on Daylight Savings Time and payment rules, please see: http://www.dol.gov/elaws/esa/flsa/hoursworked/screenER11.asp

And now back to our regularly-scheduled blogging….
It was always there; the threat of doing some jail time for violating the wage and hour portions of the Fair Labor Standards Act (FLSA). However, in the past, punishments were primarily limited to finding employers and collecting back wages and damages for wronged employees.

However, HR Morning News notes that in recent months, government agencies, including the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC) and even some state labor entities, have become more aggressive in their efforts to seek out employers breaking the law and are doling out much harsher penalties.

In the latest example, a restaurant owner in Port Chester, NY was arrested and arraigned on charges that she failed to pay minimum wage and overtime to employees who sometimes worked in excess of 70 hours per week. Now, the owner of Elisa’s Food & Plus faces several counts of wage and hour violations, and faces a maximum jail term of one year, plus fines of $5,000 for each count, as well as restitution to five employees, who were cooks, cleaners and cashiers at her restaurant. However, it should be noted that under New York law, wage and hour violators could receive a fine of up to $20,000 or up to one year in prison (on top of civil penalties) for a first offense (which is the case here).

Reflecting on the case, State Attorney General Eric Schneiderman said “my office will take aggressive action, including criminal charges, where appropriate, against business owners who fail to properly compensate their employees for hours worked. Protecting the livelihoods of hardworking New Yorkers is a priority for my office.”

However, it should be noted that under the FLSA, prison time can’t be levied until a person’s second offense. Further, a person can only be imprisoned under the FLSA if he or she was found to have intentionally, deliberately and voluntarily disregarded requirements under the law.

While HR Morning News concedes that FLSA is currently lenient for first-time offenders, the “dangers associated with falling out of compliance with wage and hour laws are growing. Now violations are much more likely to result in more than having to write some big checks.”

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