Companies can run into major problems if they aren’t up to date on the latest U.S. Department of Labor wage and hour rules. The Wage and Hour Division of the Department of Labor has an enormous impact on the interpretation and enforcement of the FLSA. On the state and local level, agencies play a large role in enforcing the wave of cutting-edge wage laws related to predictive scheduling, minimum wage, and sick time. With many surprise visits and updates to the Department of Labor rules, it is important to align your company’s compliance goals with what we believe to be the current priorities of the Department of Labor and state and local agencies. Join EPAY Systems and Seyfarth Shaw as we dive into practical advice that can be used to tackle a government wage and hour audit. Don’t wait until the government knocks on your company’s door before learning about the nuts and bolts of state and federal wage and hour agencies. Watch the webinar now.

1. Surprise Visits and
the Latest Rules
EVERYTHING YOU NEED TO KNOW ABOUT THE
DEPARTMENT OF LABOR’S WAGE AND HOUR DIVISION

2. 2
About the Speakers
Webinar Host
Brittany Kovalcik
Director of Marketing
EPAY Systems
Featured Speaker
Kara Goodwin
Associate
Seyfarth Shaw, LLP
Featured Speaker
Cheryl Luce
Associate
Seyfarth Shaw LLP
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3. EPAY Systems Overview
CHICAGO BASED
TECH COMPANY
FOUNDED 2001
SERVING HOURLY
WORKFORCE
ENVIRONMENTS
PROVIDER OF COMPLETELY UNIFIED,
FULL SERVICE HCM SOLUTIONS
75,000+ WORKSITES
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SUPPORT
24 HOURS/DAY
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INDUSTRY LEADER
UNIQUELY FLEXIBLE CLOUD
BASED TIME & LABOR
MANAGEMENT TECHNOLOGY
99%
CUSTOMER
RETENTION
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4. Legal Disclaimer
The contents of this presentation should not be construed as legal advice or a
legal opinion on any specific facts or circumstances.
These materials are intended for general information purposes only, and you are
urged to consult a lawyer concerning your own situation and any specific legal
questions you may have.
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5. 5
• Overview of the Department of
Labor
• DOL Opinion Letters
• DOL Audits
• Anticipated Wage-Hour Issues
• State and Local Trends
• Questions
Agenda
WHAT WE’LL
COVER IN TODAY’S
WEBINAR
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6. US Department of Labor
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7. • Sworn in April 28, 2017
• Received bi-partisan support
• Served as U.S. Attorney for Southern District
of Florida
• Served as member of NLRB and
Department of Justice’s Civil Rights Division
during George W. Bush Administration
• Most recently Dean of Florida International
University School of Law
• Selection lauded by management-side
attorneys with some cautious union support
7
Secretary
of Labor:
Alex Acosta
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8. • The Wage and Hour Division (“WHD”)
of the U.S. Department of Labor
(“DOL”) administers and enforces the
FLSA
• Regulations
• Opinion Letters
• Enforcement
▪ Enforcement through investigation
▪ Enforcement through legal remedies
• Confirmations Update
• Impact of changes in executive branch
administration
U.S.
Department
Of Labor
Wage and
Hour
Division
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9. 9
DOL Guidance:
Opinion Letters
• WHD guidance through opinion letters, ruling letters, administrator
interpretations, and field assistance bulletins
• Opinion Letters
• Interested parties (i.e. employers) may seek and officials of the WHD
may provide official written explanations of what the FLSA or the
FMLA requires in fact-specific situations
• May be relied on as a good faith defense to wage claims under the
FLSA
• Trump administration has vowed to resume issuing opinion letters
and in January 2018, the WHD reissued 17 opinion letters that it
withdrew in 2009, including on such topics as:
• Salary deductions and the salary basis test
• Bonuses and the regular rate of pay
• Exempt status of client service managers
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10. DOL Guidance – Administrator
Interpretations & Rulemaking
• Issued when clarity regarding the proper
interpretation of a statutory or regulatory issue
is necessary
• Set forth general interpretation of law and
regulations, applicable across-the-board to all
affected by the provision at issue
• Administrator Interpretations on joint
employment and independent contractors
withdrawn
• WHD scraps 2010 fact sheet on interns
• White collar overtime exemptions
• WHD proposes rescission of tip pooling rule
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11. • In early March 2018, the WHD announced a
new program – Payroll Audit Independent
Determination program (“PAID”)
• Intended to facilitate efficient resolution of
claims under the FLSA without the need for
litigation
• Process of the PAID program
o Employer identifies potential violations
o Employer contacts WHD to discuss
resolution
o Employer makes back wage payments  if
employee accepts back wages, FLSA claim
waiver; if not, no impact
11
PAID –
WHD’s Pilot
Program for
Proactive
Employers
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12. DOL Investigations
12
• DOL has broad authority
• Can conduct
investigations at any time
• Can arise from:
• Employee complaint
• Targeting certain
industries
• Just plain bad luck
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13. DOL Investigations:
What to Expect
• Usually, DOL will send advance notice
• Tour of the facility
• Inspection of documents
• Interviewing employees
• Making an initial determination that there has
been a violation
• Discussing entering a voluntary conciliation
agreement
• Assessing civil and criminal penalties in
addition to back wages
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14. DOL Investigations: Best Practices
Do’s
• Be courteous and polite
• Ask the investigator about
the scope
• Try to reschedule the visit
allow more preparation time
• Take advance notices
seriously and prepare
Don’ts
• Be obstructionist
• Ask which employee made a
complaint
• Forget you have the right for
your attorneys and accountants
to participate in the investigation
(but not for employee
interviews)
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15. • Payment of minimum wage and overtime
• Proper classification of employees as exempt
and non-exempt
• Misclassification of independent contractors
• Regular rate violations
• Off-the-clock work
• Unlawful wage deductions
• Improper tipping and tip-pooling practices
• Record keeping practices
• Workplace posting requirements
DOL
Investigations:
Common
Issues
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16. DOL Investigations:
Internal Steps
Your Company
• Bring to the attention of the appropriate
department and key players
• Assign a point person responsible for
collecting documents and a point person to
attend all interviews
• Instruct about policies prohibiting retaliation
• Analyze applicable services agreements
• Analyze insurance coverage
Your Attorneys
• Factors of whether to engage outside
counsel include scope and likelihood of
violations
• Communications in preparation for the audit
likely privileged
• Protects initial analysis from disclosure
• Controls the flow of information
• Shows the DOL that you’re taking it
seriously
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17. DOL Investigations:
Working with the DOL
• Organize the information and demonstrate
compliance
• Clarify the nature and scope
• Attempt to limit the investigation:
o To a particular site
o To certain categories of employees
o To a sample of records
• Do not sign a tolling agreement unless the
company gets something in return (e.g., limiting
scope)
• Voluntarily perform back wage calculations
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18. • Right to counsel present
• Discuss findings and calculations
• Request copies of computations
• Take careful notes
• If you dispute investigator’s findings, present
evidence of compliance
DOL
Investigations:
The Final
Conference
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19. DOL Investigations:
Reducing Risks of Litigation
• Strategic communications with employees
• Encourage (but do not coerce) employees
to sign Form WH-58
• Maintain signed forms and evidence of
back payments to employees and DOL
because may bar future claims
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20. o Pre-shift and post-shift work
▪ Federal standard: “principal work activity”
▪ California standard: control test
o Problem areas:
▪ Work during meal periods
▪ Taking work home
▪ After-hours calls
▪ Mobile devices
▪ Donning and doffing
▪ Bag checks
20
Anticipated
Wage-Hour
Issues:
Timekeeping
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21. Anticipated Wage-Hour Issues:
Independent Contractor
Misclassification and Joint Employment
• Employer dictates and monitors details
• Exclusive to employer
• Reimbursed for expenses; paid hourly or
fixed salary
• Services are the core of employer’s business
• Employer provides/reimburses tools and
instruments
• Indefinite period
• Work typically performed by employees in the
industry
EMPLOYEE
• Contractor tasked with results
• Independent business; risk of profit/loss
• Services incidental to client’s core business
• Provides own tools/instruments
• Definite period
• Highly skilled worked
• Paid by the job, piece, or project
• Negotiated contract
• Work customarily performed by independent
profession
• Economically independent
INDEPENDENT CONTRACTOR
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22. Anticipated Wage Hour Issues:
Non-nefarious FLSA violations
• Common ways a manager’s well-intentioned decisions can result in potential
violations of the FLSA:
o “You had a great January, but let’s have an even better in February. Whoever makes 50
sales will get a $150 bonus. This isn’t the company’s thing, it’s my thing.”
o “Of course you can take it home!”
o “Have a minute to help me out? You can take the remaining 20 minutes of your 30-minute
lunch break after we’re done.”
o “Rather than recording overtime this week, why don’t you take off a few hours early next
Friday and spend the afternoon with your kid?”
o “We actually don’t need you today. And didn’t you tell me your daughter is home from
college today? This works out perfectly—why don’t you head home and spend the day with
her.”
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23. State and Local Trends
23
• Predictive Scheduling
oInitially designed to assist and
protect workers in food service
and retail environments, but
application is spreading to
other industries
oQuick overview of current and
pending laws
• Minimum Wage
oState/local changes
• Reporting Pay / “Show Up” Pay
• Paid Sick Time

24. 24
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25. 25
Time and
Labor
Management
Mix & Match Time
Collection Options
Or for Just a Few
Employees (IVR)
BIOMETRIC TIME
CLOCKS
MOBILE TIME TRACKING
APP WITH GPS
TELEPHONE (IVR)
ONLINE TIME
TRACKING
Time & Labor Payroll
EPAY HCM
3rd Party
ERP,
Financial,
Accounting
Systems
Integration

26. • Payment of minimum wage and overtime
• Proper classification of employees as exempt
and non-exempt
• Misclassification of independent contractors
• Regular rate violations
• Off-the-clock work
• Unlawful wage deductions
• Improper tipping and tip-pooling practices
• Record keeping practices
• Workplace posting requirements
DOL
Investigations:
Common
Issues
26
We have you covered

27. Time & Labor
27
Proactively Manage Your Labor
▪ Flexible pay rule logic
▪ Employee scheduling and accruals
▪ Labor budgets and job costing
▪ Wage and hour compliance
▪ Real time alerts and messaging
▪ Reporting and labor analytics
▪ Employee performance tracking
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28. Questions?
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29. 29
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30. Thank you!
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