Compliance with federal (as well as state) wage and hour laws returned to the forefront towards the end of the Obama administration when it appeared that the salary threshold that applied to exempt employees would be increased significantly. While the proposed change will not happen, the Trump administration has signaled that the threshold will nonetheless likely increase. Regardless of where the new threshold lands, employers must nonetheless be mindful of the risks posed by misclassifying individuals as exempt as well as by a host of practices that can imperil otherwise proper classification decisions. And while the federal government is no longer scrutinizing the use of independent contractors as closely today, employers must still be careful when relying on contractors. This webinar delves into the mistakes commonly made by employers and endeavors to provide attendees with the tools needed to help find and fix potential wage and hour pitfalls. Part of the webinar series: Protecting Your Employee Assets: The Life Cycle Of The Employment Relationship 2022 See more at https://www.financialpoise.com/webinars/

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4. Disclaimer
The material in this webinar is for informational purposes only. It should not be considered
legal, financial or other professional advice. You should consult with an attorney or other
appropriate professional to determine what may be best for your individual needs. While
Financial Poise™ takes reasonable steps to ensure that information it publishes is accurate,
Financial Poise™ makes no guaranty in this regard.
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5. Meet the Faculty
MODERATOR:
Charles Krugel - Law Offices of Charles Krugel
PANELISTS:
Max Barack - The Garfinkel Group, LLC
Helen Bloch - Law Offices of Helen Bloch, P.C.
Gary Savine - Savine Employment Law, Ltd.
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6. About This Webinar – Show Them the Money: Wage &
Hour Compliance
Constant and continuing changes to federal, state and local wage and hour laws have led to
increased oversight, litigation and enforcement initiatives.
Employers must be mindful of the risks posed by misclassifying individuals as exempt or
nonexempt from overtime, or as a contractor or employee. Locations and laws vary
jurisdiction-by-jurisdiction. Penalties like back taxes, unpaid wages and attorneys’ fees may
vary depending on location.
This webinar delves into the mistakes commonly made by employers and endeavors to
provide attendees with the tools needed to help find and fix potential wage and hour pitfalls.
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7. About This Series – Protecting Your Employee Assets:
The Life Cycle of the Employment Relationship
If you have employees or advise companies with employees, this webinar series is for you! No
employer—whether large, medium or small—is immune from the reach of federal, state and/or local
employment laws and regulations. Now, more than ever, employers should consider taking a proactive
approach to auditing their employment practices and policies so that they can better respond when issues
arise. This webinar series approaches the employer-employee relationship from beginning to end, with
programs covering the most important steps along the way, including hiring and onboarding, policy and
procedure development and training, wage and hour compliance, accommodating disabled employees,
conducting investigations and considerations associated with ending the relationship.
Each Financial Poise Webinar is delivered in Plain English, understandable to investors, business owners, and
executives without much background in these areas, yet is of primary value to attorneys, accountants, and other
seasoned professionals. Each episode brings you into engaging, sometimes humorous, conversations designed to
entertain as it teaches. Each episode in the series is designed to be viewed independently of the other episodes so that
participants will enhance their knowledge of this area whether they attend one, some, or all episodes.
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8. Episodes in this Series
#1: Welcome to the Team! Recruiting and Hiring, Including Restrictive Covenants
Premiere date: 1/25/22
#2: An Ounce of Prevention: Policies, Procedures and Proactivity
Premiere date: 2/22/22
#3: Show Them the Money: Wage & Hour Compliance
Premiere date: 3/29/22
#4: The Impact of Communicable Diseases, Including Coronavirus, on the Workplace
Premiere date: 4/20/22
#5: I Know What You Did Last Summer: Workplace Investigations
Premiere date: 5/24/22
#6: It’s So Hard To Say Goodbye: Minimizing Risk When Terminating Employees
Premiere date: 6/22/22
#7: Time for a Break: Managing Leaves of Absence and Accommodating Disabilities
Premiere date: 7/27/22
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9. Episode #3
Show Them the Money: Wage & Hour Compliance
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10. Wage and Hour Issues are Always on the Rise
• WHY?
• The “perfect storm” of events:
✓ Increased activity by plaintiff’s bar
✓ Greater focus on wage and hour violations by regulatory agencies
✓ Many employers do not understand the law
✓ Some employers lax in auditing wage and hour compliance
✓ Almost every employee is a potential plaintiff
✓ The recent change in the presidency, various “occupy,” “fight for 15” and ‟living wage”
movements result in greater scrutiny
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11. What are the Most Common Types of Claims?
• Unpaid work
✓ Auto-deduction for meal periods
✓ Rounding
✓ Remote work
✓ Requiring/permitting off the clock work
✓ Miscalculating regular rate for overtime purposes
• Misclassification of exempt/non-exempt employees
• Improper salary deductions
• Failure to comply with more stringent state or local regulations
• Poorly drafted and communicated pay plans
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12. Fair Labor Standards Act (FLSA)
• The FLSA, 29 U.S.C. § 203, is the primary federal law regulating minimum wage and
overtime payments.
✓ Must be an employment relationship between the employee/employer
✓ Applies to all employees of an enterprise engaged in interstate commerce or
production of goods
✓ Enacted in 1938
✓ Now being applied to jobs that didn’t exist in the 20th century
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13. Fair Labor Standards Act (FLSA) (cont’d)
• Two types of coverage:
✓ Enterprise coverage: If an enterprise is covered, all employees of the enterprise are
entitled to FLSA protections; and
✓ Individual coverage: Even if the enterprise is not covered, individual employees may
be covered and entitled to FLSA protections
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14. State and Local Wage Laws
• Federal law does not preempt state employment laws
• Employees are entitled to the provision most favorable to them
• State wage law concerns:
✓ Higher minimum wages
✓ Different or non-existent exemptions
✓ Wage payment laws
✓ Wage deduction laws
✓ “Living wage” laws
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15. Impact of State Wage and Hour Laws
• State or local law claims may be brought as class actions as opposed to FLSA collective
actions. Same principles.
• Class vs. collective actions:
✓ A class member must affirmatively “opt in” to an FLSA collective action in order to
participate and be bound by the judgment
✓ Under traditional class actions, each class member is bound by the judgment and
notified of award or settlement unless he or she affirmatively “opts out”
✓ Thus, class actions under state or local law may have very large classes
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16. Auto Deductions for Meal Periods
• What is a “bona fide” meal period?
✓ At least 20 - 30 minutes (depending on jurisdiction)
✓ Employees must be completely relieved from duty during that time
✓ Any duties performed, whether active or inactive, disqualifies the whole time period
from being unpaid
✓ Issues carrying on-call devices (E.g., phones, pagers, pinging)
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17. Time Rounding
• Like automatic deductions, the practice is lawful
• DOL accepts rounding if employees are “fully compensated”
• Ripe for class-certification because of a uniform policy
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18. Remote Work
• Employee able to perform work outside of visual observation from a supervisor
✓ E.g., logging onto computer system, checking devices, taking phone calls at home
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19. Off the Clock Work
• Occurs when employee performs work on premises, but not clocked in, whether before or
after shifts or during meal periods
• Employees must be compensated for closely related duties and tasks that are
indispensable to the performance of the employee’s activities
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20. Policies Regarding Off the Clock Work
• Accurately record all work time
• Prohibit off-the-clock work
• Mandatory process for reviewing exceptions to time entries
• Mandatory reporting of all suspected off-the-clock work
• Internal mechanism for hourly employees to complain about uncompensated work
• Prohibiting arriving at work station before set start time
• Automatic discipline of employees who violate the timekeeping policy
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21. Calculating Overtime
• Covered, non-exempt employees must receive one and one-half times the regular rate of
pay for all hours worked over forty in a workweek
• Cannot be less than the minimum wage
• Each workweek stands alone
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22. Properly Calculating “Regular Rate”
• Is determined by dividing total earnings in the workweek by the total number of hours
worked in the workweek
• May not be less than the applicable minimum wage
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23. Regular Rate Includes
• Non-discretionary bonuses
• Incentive pay
• Commissions
• Shift differentials
• Retroactive pay increases
• Board or Lodging (if customarily furnished by employer to employee)
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24. Regular Rate Does Not Include
• Gifts
• Paid Time Off (e.g., vacation pay, holiday pay, sick leave)
• Expense Reimbursements
• Discretionary Bonuses
• Retirement Plan Contributions or Insurance Payments
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25. Difficulties Calculating “Regular Rate”
• Non-discretionary bonuses and commissions can be problematic because they generally
must be apportioned back over the period in which they were earned
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26. Exempt Vs. Non-Exempt in a Nutshell
• Employees are generally presumed “non- exempt,” and entitled to at least 1½ times their
regular rate of pay for all time worked in excess of 40 hours per week
• Non‐Exempt
✓ Must be paid at least minimum wage
✓ Must be paid at least time‐and‐one‐half for all hours worked over 40 in a work week
• Exempt
✓ Generally, if an employee is exempt, he/she is exempt from overtime
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27. Exempt Vs. Non-Exempt in a Nutshell (cont’d)
• Exempt:
✓ only means that these employees generally meet all the criteria and are generally
exempt from overtime
• Not exempt:
✓ only means that these employees generally do not meet the criteria for this exemption
and generally are not exempt
✓ Take note: job titles are not controlling; reality of the circumstances controls
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28. To Be or Not to Be Exempt? That is the Question
• To be exempt, must meet two tests:
• Duties Test:
✓ different for each exemption
• Salary Basis Test:
✓ currently $679/week or $35,308/year
✓ salary basis does not apply to lawyers, doctors, teachers or outside sales
✓ computer employees can be paid hourly, at least $27.63
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29. Exemptions
• White collar exemptions:
✓ Executive
✓ Administrative
✓ Professional
• Other typical exemptions:
✓ Outside sales
✓ Computer analyst, computer programmer, software Engineer
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30. White Collar Exemptions
• Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and
overtime pay for employees who are employed in a bona fide:
✓ Executive;
✓ Administrative;
✓ Professional; or
✓ Outside sales
• Certain computer employees may be exempt professionals under Section 13(a)(1) or
exempt under Section 13(a)(17) of the FLSA
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31. What Does “Primary Duty” Mean
• Primary duty means the position’s “principal, main, major or most important duty that the
employee performs”
• Employees who spend approximately 50% of their time performing exempt work will
generally satisfy the primary duty requirement under federal law
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32. Primary Duty: Factors to Consider
• The following factors should be considered:
✓ The relative importance of the exempt duties as compared with other types of duties;
✓ The amount of time spent performing exempt work;
✓ The employee’s relative freedom from direct supervision; and
✓ The relationship between the employee’s salary and the wages paid to other
employees for the kind of non- exempt work performed by the employee.
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33. Administrative Exemption
• Primary duties must include:
✓ Performance of office or non-manual work directly related to the management or
general business operations of the employer or the employer’s customers; and
✓ Exercise of discretion and independent judgment with respect to matters of
significance
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34. Computer Employee Exemption
• Includes persons employed as:
✓ Computer systems analysts
✓ Computer programmers
✓ Software engineers and other similarly skilled workers in the computer field
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35. Computer Employees are Not
• Employees engaged in the manufacture or repair of computer hardware and related
equipment;
• Employees whose work is highly dependent upon, or facilitated by, the use of computers
and computer software programs;
• Individuals who work in a “help desk” capacity who perform installation or troubleshoot
computer or network issues
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36. Outside Sales Exemption
• Makes sales and takes orders away from the employer’s place of business, and
• Spends less than 20% of work hours at the employer’s place of business doing work
unrelated to sales duties
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37. Creative Professional Exemption
• Primary duties must consist of:
✓ Performance of work requiring invention, imagination, originality or talent in a
recognized field of artistic or creative endeavor.
o Examples of recognized field of artistic or creative endeavor includes music,
writing, acting and the graphic arts
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38. Overtime
• If an employee is not exempt from overtime, the employer must pay overtime premium on
all compensation the employee receives
• “Compensation” includes:
✓ Hourly wages
✓ Salary
✓ Commissions
✓ Bonuses
✓ Spifs: sales performance incentive fund
✓ Payments from the manufacturer
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39. Penalties for Overtime Violations
• Plaintiff may recover unpaid wages/overtime (i.e., backpay)
• In addition to backpay, a successful plaintiff is entitled to an equal amount (i.e., doubling)
as liquidated damages for claims under the FLSA
• Successful plaintiff is entitled to reasonable attorneys’ fees. Sometimes, these are the
most costly
• Individual officers/managers/supervisors can be held personally liable
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40. Alternatives to Overtime
• Employers may choose other methods to compensate for additional time worked:
• For example:
✓ Comp Days: working less time another day in the same week
✓ Time-Off Plan: Take comparable # of hours off the next work week
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41. Minimizing Unpaid Work Risks
• Training
• Clear and well communicated timekeeping policies
• Accurate timekeeping software
• Reporting and audit protocol to monitor hours worked reports
• Internal reporting system
• Employees to certify time records and paychecks accurately reflect time worked and pay
due
• DOL Guide to Minimum Wage and Overtime Pay can be found:
http://webapps.dol.gov/elaws/elg/minwage.htm
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42. Who is an Independent Contractor?
• Depends on the forum you are in:
✓ The definition may vary between the IRS and other agencies (Department of
Labor, EEOC) and courts tasked with making this determination
• No clear line; no general test
• Important considerations:
✓ Extent to which services rendered by an individual are an integral part of the
principal’s business
✓ Permanency of the relationship between the individual and the principal
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43. Who is an Independent Contractor? (cont’d)
• The amount of investment in facilities and equipment by the individual
• The opportunities for profit or loss by the individual, and the method of compensation
• The degree of independent business organization and operation by the individual
• The degree and nature of control of the individual by the principal
• The degree of independent judgment exercised by the individual who performs the
services
• Performance of the same or similar services by the individual for third parties in addition to
the principal
• Employment of the individual by the principal in any other capacity
• A comparison of the relationship to other independent contractor operations of a similar
nature in the industry
• The right of either party to terminate the relationship on short notice without penalty
43

44. Recordkeeping Tips
• “Basic records” that a covered employer must keep certain for each non-exempt worker,
For example –
✓ Full Name, sex, social security number, age (if younger than 19)
✓ Regular rate of pay, total hours worked, total daily or weekly straight-time earnings
✓ Deductions and date of payment and pay period for payment, etc.
• Reference: Fact Sheet 21: Recordkeeping Requirements Under The Fair Labor
Standards Act (FLSA)
• If you pay cash, record all payments
44

45. Conclusion
• Wage and hour compliance program
✓ employee complaint;
✓ manager report; or
✓ audit result.
45

46. About the Faculty
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47. About The Faculty
Charles Krugel - cak1@charlesakrugel.com
As a management side labor & employment attorney & human resources (HR) counselor,
Charles Krugel, www.charlesakrugel.com, has 25 years of experience in the field & has been
running his own practice for 20 years. His clients are small to medium sized companies in a
variety of industries. Charles has been lead negotiator for hundreds of labor & employment
agreements & contracts. Additionally, he’s litigated dozens of court cases, administrative
proceedings & arbitrations. In addition to providing traditional labor & employment law
services, he represents companies desiring to institute preventive & proactive HR functions.
These functions include policies & procedures, which help to efficiently & discreetly resolve
issues in-house & prevent lawsuits & complaints; they also help to reduce costs & act as
catalysts for increasing productivity & profits. Moreover, he’s frequently the subject labor &
employment law related TV, radio & print interviews..
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48. About The Faculty
Max Barack - MBarack@favarogorman.com
Max leads the Garfinkel Group, LLC's employment law practices groups and is a plaintiff-side
employment law attorney. He has been practicing law since 2013 and has spent the majority of
that time handling plaintiff-side employment matters. He concentrates his practice primarily on
representing plaintiffs in their claims of discrimination, as well as wage & hour violations,
whistleblower actions, & severance negotiations. He has extensive litigation experience, with a
focus on electronic discovery (ESI). He has represented & assisted employers in defending
discrimination & wage & hour disputes, including in department of labor investigations. He is a
member of the Board of Directors of the National Employment Lawyers Association of Illinois & co-
chair of its Legislative Committee. He is a regular contributor to the Chicago Bar Association's
@theBar blog, & is fluent in Spanish.
J.D., Chicago-Kent College of Law
B.A., University of Michigan
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49. About The Faculty
Helen Bloch - hbloch@blochpc.com
In 2007, Helen Bloch founded the Law Offices of Helen Bloch, P.C., a general practice firm that is a Certified
Female Business Enterprise. In the employment & business context, Helen represents clients on all sides of the
employment relationship- individual employees, managers, or employers. Routinely Helen negotiates &
counsels clients on employment agreements, including non-competition, confidentiality, & severance
agreements. Also, she drafts employment handbooks & various policies & procedures. Helen will advise
businesses on best practices, including providing sexual harassment training. Helen has lectured on topics such
as gender role in the law, legal issues affecting small businesses, & legal rights & obligations from multiple sides
of the employer-employee relationship. Since 2019 she has been selected for inclusion in Super Lawyers in the
area of employment law. Helen is Past President of the Decalogue Society of Lawyers & serves on the Alliance
of Bar Associations, where she assists in screening judicial candidates. Her other bar association memberships
include the Illinois chapter of the National Employment Lawyers Association, Women’s Bar Association of
Illinois, & the Illinois State Bar Association. An active National Association of Women Business Owner’s
(NAWBO) member, Helen leads NAWBO’s Business Exchange Group.
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50. About The Faculty
Gary Savine - gnoah@savinelaw.com
Gary Noah Savine is an employment lawyer and the founder of Chicago-based law firm Savine
Employment Law, Ltd. Gary brings to the table over twenty years of legal expertise and hands-on
experience, working around the globe, shoulder-to-shoulder with senior executives and human
resource professionals solving the thorniest of workplace disputes. Before starting his firm, Gary
practiced employment law exclusively at two of Chicago’s largest law firms and served as chief
employment counsel at Navistar (NYSE: NAV) and Hill-Rom Holdings (NYSE: HRC). Gary
frequently speaks and writes about employment law issues. He has written and presented before
the American Bar Association, the National Employment Lawyers Association, the Northern Illinois
Society for Human Resources Management, the Northern Illinois Franchise Association and the
American Conference Institute. Gary received his law degree cum laude from the University of
Michigan Law School in 1996. More information about Gary’s firm can be found at
www.savinelaw.com.
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51. Questions or Comments?
If you have any questions about this webinar that you did not get to ask during the live
premiere, or if you are watching this webinar On Demand, please do not hesitate to email us
at info@financialpoise.com with any questions or comments you may have. Please include
the name of the webinar in your email and we will do our best to provide a timely response.
IMPORTANT NOTE: The material in this presentation is for general educational purposes
only. It has been prepared primarily for attorneys and accountants for use in the pursuit of
their continuing legal education and continuing professional education.
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