Human Resources for Long Term Care

A Human Resources Teleconference Series for

Long Term Care Human Resources Personnel

Session II: Wage & Hour Issues

February 9, 2008
Human Resources for Long Term Care

Session II: Wag & Hour Issues

Presenters:
Brian R. Purtell
Wisconsin Health Care Association & DeWitt Ross & Stevens S.C.
(608) 252-9366
brian@whca.com
brp@dewittross.com
&
Mindy Rowland Buenger
DeWitt Ross & Stevens S.C.
(608) 252-9320
mrb@dewittross.com
 Today’s Session

Overview and Review of the Fair

Labor Standard Act (FLSA)
On-Call/24 hour coverage
Exempt vs. Non-exempt
Break/Lunch time requirements
Posting expectations
Overtime
Timekeeping procedures
Minimum wage
 Overview and Review of the FSLA

Overview, applicability
Recent focus on LTC providers
Results of DOL LTC review
Enforcement
Remedies
Penalties
Risks
Focus areas
 Overview and Review of the FSLA

C
 Overview and Review of the FSLA

DOL Activity in LTC

Review Findings
 Overview and Review of the FSLA

Enforcement
Penalties
Remedies
Focus areas
 Overview and Review of the FSLA

DOL and DWD Resources

 Hours Worked: Issues

Suffered or Permitted
On-Call Time
Meal and Rest Periods
Waiting Time
Training Time
Travel Time
Sleep Time
 Suffered or Permitted

Wisconsin law: E/ees must be paid

for all time spent in “physical or
mental exertion (whether burdensome
or not) controlled or required by the
e/er and pursued necessarily and
primarily for the benefit of the e/er’s
business” Wis. Admin. Code DWD
272.12(1)
 Suffered or Permitted

Federal law: “employ”= “to suffer or

permit work”
Work not requested but suffered or
permitted is work time
 Hours Worked: On-call time

On-call time is hours worked when

Employee has to stay on the employer’s
premises
Employee has to stay so close to the employer’s
premises that the employee cannot use that time
effectively for his or her own purposes
On-call time is not hours worked when
• Employee is required to carry a pager
• Employee is required to leave word at home or
with the employer where he or she can be
reached
 Hours Worked: On-call time

Case-by-case determination.
Factors include:
Length of any required time limits for
responding to calls.
Geographic restrictions on employee’s
movements;
Frequency of actual calls during such time;
Ability to trade “on-call” responsibilities, and
number of employees working on-call;
Whether use of pager would ease
restrictions on employee
 Hours Worked: On-call time

Factors (cont):
Whether employee actually engaged in
personal activities while on-call
Whether agreement existed re:
compensation while on-call, and whether
employees were aware at time of
accepting position;
Geographic location of employer; and
The effect of requiring compensation for
on-call activities both to employer and
employee
 Hours Worked: Meal and Rest
Periods

Meal periods are not hours worked

when the employee is relieved of
duties for the purpose of eating a
meal
Rest periods of short duration
(normally 5 to 20 minutes) are
counted as hours worked and must be
paid
 Hours Worked: Meal and Rest
Periods

LTC Issues: For periods to not be hours

worked, staff must be fully relieved from
responsibilities.
Regular pulling staff from meals/breaks to attend
to residents may equal compensable time. Meal
periods are not hours worked when the employee
is relieved of duties for the purpose of eating a
meal
Unauthorized extension of break, contrary to
clear policy, need not constitute hours
worked.
 Hours Worked: Waiting Time

Counted as hours worked when:

Employee is unable to use the time
effectively for his or her own purposes; and
Time is controlled by the employer

Not Counted as hours worked when:

Employee is completely relieved from duty;
and
Time is long enough to enable the employee
to use it effectively for his or her own
purposes
 Hours Worked: Training Time

Time employees spend in meetings,

lectures, or training is considered hours
worked and must be paid, unless
Attendance is outside regular working hours
Attendance is voluntary
The course, lecture, or meeting is not job
related
The employee does not perform any
productive work during attendance
 Hours Worked: Training Time

Training Time Issues for LTC:

In-service
NA Training
Exempt vs. Non-exempt
 Break/Lunch Time Requirements

When must breaks and lunch be paid

time?
Break/Lunch Time Requirements
 Posting Expectations

State and Federal Posting

requirements
Prominence
Location
What must be posted
Alternatives to posting
 Overtime Issues

Who is eligible
When must overtime be paid
Calculation of Base rate
80/80 rule
 Timekeeping Procedures

Requirements for employers

Retention of documents
Punch-in
When are employees “on the clock”
Off the clock work
 Training and In-service Issues

When must you pay an employee for

training time
Nurse aid training issues
How much c
Minimum Wage Issues
 Payroll Issues

Direct Deposit requirements

 Employee Use of Cell Phones,
email, PDAs impact on FLSA

DOL has not directly addressed, but time spent using

cell, PDAs, etc, during non-business time by non-
exempt personnel during non-business hours may be
considered compensable time.
Employees must be paid for work purpose use, unless
de minimus
Deducting for lost or damaged electronics:
Exempt employees: Salary deductions for lost or
damaged company property would defeat the
employee’s exemption b/c salary would not be
“guaranteed” or paid “free and clear” DOL opinion
3/10/06
Non-exempt: DOL has stated an employer may not
require an employee to pay for an expense of e/er
business if doing so reduces e/ee’s pay below required
min. wage or overtime premium due.
 Wisconsin Caregiver Background
Check Law (WCBC)

“Regular” means contact that is planned,

scheduled, expected or periodic.
“Direct contact” when used in reference to a
person’s contact with clients, means face-to-
face physical proximity to a client that
affords the opportunity to commit abuse or
neglect of a client or misappropriation of a
client’s property.
In defining “caregiver,” err on the side of
finding individuals covered.
 Wisconsin Caregiver Background
Check Law (WCBC)

Summary of CBC Process

Applicant completes Background Information Disclosure

Form (BID)
As applicable from BID, check other states, military
discharge, etc.
If “clean” BID, eligible for provisional hire for up to 60 days
Submit CBC to Wisconsin Department of Justice
Review results of CBC (criminal history and DHFS search)
Check for crimes/findings that preclude employment
As applicable, follow-up on required information for “look
back” crimes
Employment decision
Resubmit four years from anniversary date
 CBC Issues and Problems

Non-client residents
Minors: Not required to conduct,
when minor but must conduct upon
employee turning 18
Volunteers: Not covered, unless
serving e/ee role
Temporary/pool employees
 CBC Issues and Problems

Document Retention
Sharing results between covered entities
Anniversary date: CBC entire process must
be conducted every four years, including
completion of BID form.
Unless: Entity adopts policy that annually notifies
all employees that they must provide the
employer with the information that is required on
the BID form. See 2005 WI Act 351
Obtaining out of state information: Must
make a “good faith effort” to obtain the
similar information from the other state.
Employee reporting of offenses/handbooks
 Employment Discrimination
Based on Arrest or Conviction
Records

Wisconsin includes arrest or

conviction records within the definition
of employment discrimination.
Minority of States
“substantially related test” for convictions
and pending charges
Arrests cannot be used as the basis
for employment decisions if they
substantially relate to the position.
 The “Substantially Related Test”

Affirmative obligation vs. defense to

discrimination charge.
HFS 12.06 “Factors”
Balance of risks
 Avoiding/Defending Against
Employment Discrimination
Charge

Employment application question:

Okay to ask about convictions/arrests?
Explaining why applicant not hired:
Okay to tell them reason was conviction?
Case by case determination
Defenses
Employee lied on application
50.065 language vs. 111.335
Job “substantially relates” to crime
 Screening Options

Wisconsin Consolidated Court

Automation Programs (“CCAP”)
www.wcca.wicourts.gov
Uses
Limitations
More than criminal history, e.g. traffic,
civil, family
 Other Screening Options

FBI Background Checks

Drug/alcohol testing
Credit/financial checks
Sex offender databases
http://offender.doc.state.wi.us/public/search/search.jsp

Internet/Facebook/MySpace
 Contracting for Screening
Services

Who to use?
How to find a good service?
Due diligence
Getting value
Assurance that applicable required
checks are included in service
 Employment Eligibility
Determination

Revised I-9 Forms

How has it changed?
Online version:
– http://www.uscis.gov/files/form/i-9.pdf

Document Retention
 Employment Eligibility
Determination

SSA Mismatch Letter Regulations

Status
Plans for future
E-Verify
What is it?
Do I have to e-verify?
Should I?
SSNVS Verification
 Questions?

Select *2 to enter queue