Daycare Centers and Preschools Must Pay Overtime Under the Fair Labor Standards Act (FLSA)

General Characteristics of Daycare Centers and Preschools

Daycare centers and preschools provide custodial, educational, or developmental services to preschool age children to prepare them to enter elementary school grades. This includes nursery schools, kindergartens, head start programs, and any similar facility primarily engaged in the care and protection of preschool age children. Individuals who care for children in their home are not considered daycare centers unless they have employees to assist them with the care of the children.

 Coverage 

The 1972 Amendments to the FLSA specifically extended FLSA coverage to preschools as covered “enterprises,” regardless of whether public or private or operated for profit or not for profit, and without regard to the annual dollar volume of the business. As a result, all such enterprises are required to comply with applicable provisions of the FLSA.

 Five Requirements of FLSA Coverage

Daycare center and preschool employers are required to:

  1. Establish the workweek for pay purposes (7 consecutive 24-hour periods), which may begin on any day of the week in the employer’s discretion (but remains fixed once established).
  1. Maintain complete and accurate records of each employee’s daily and weekly hours worked each week.
  1. Pay at least the federal minimum wage to all nonexempt employees.
  1. Pay at least one-and-one-half times each employee’s regular rate of pay as overtime compensation to each nonexempt employee for all hours worked over 40 in each workweek.
  1. Comply with all youth employment standards, such as restrictions on working hours, operating certain equipment, or performing work in certain occupations for minors under age 16 and, if under age 18, restrictions against performing certain hazardous occupations (which include driving a school bus, among others).

Preschool Teachers: Bona fide teachers in preschool and kindergarten settings may qualify for exemption from the minimum wage and overtime pay requirements as “professionals” under the same conditions as a teacher in an elementary or secondary school. Teachers are exempt if their primary duty is teaching, tutoring, instructing or lecturing in this activity as a teacher in educational establishment. It should be noted that, although a preschools may engage in some educational activities, preschool employees whose primary duty is to care for the physical needs for the facility’s children would ordinarily not meet the requirements for exception as teachers under the applicable regulations.

Rest and Meal Periods: Employers that authorize short breaks or rest periods must count them as hours worked. Rest periods of short duration, usually 20 minutes or less, are common in industry (and promote employee efficiency) and are customarily paid for as working time. Bona fide meal periods (typically 30 minutes or more) generally need not be compensated as work time as long as the employee is completely relieved from duty for the entire meal period for the purpose of eating a regular meal. The employee is not relieved from duty if required to perform any duties, whether active or inactive, while eating. Thus, an employee is not considered “relieved” if required to continue to watch over children while they and the employee eat their meal.

Lectures, Meetings and Training Programs: Attendance at lectures, meetings, training programs, and similar activities must be counted as working time unless all four of the following criteria are met: (1) it occurs outside normal scheduled hours of work; (2) it is completely voluntary; (3) it is not job-related (unless the employee attends an independent school or college on his/her own initiative outside work hours); and, (4) no other work is performed during the period. The time spent attending training that is required by the state for day care center licensing is working time for which employees must be compensated.

 Five Typical Problems of Daycare Centers and Preschools

  1. not recording all hours of work, for instance, taking someone off the clock for lunch even though the person is required to remain with children and supervise them, attending parent staff meetings, running errands for the employer such as going to the grocery store, etc.;
  1. employees reporting early or staying late who are paid a flat fee for this extra time, instead of paying proper overtime (time-and-one-half the regular rate of pay) for such extra hours;
  1. taking improper deductions from employees’ pay, such as for items that primarily benefit the employer, which causes them to be paid less than minimum wage or which cuts into the overtime due the employee;
  1. classifying employees, who do not meet all the tests for exemption, as exempt teachers and not paying such non-exempt staff appropriate overtime compensation; and
  1. paying overtime compensation after 80 hours in two weeks instead of the required overtime payment after 40 hours in each week.

 If you feel that you have not been compensated for all the hours you have worked at a preschool or daycare center you may call the law office for a FREE  consultation about your claim for minimum wage or unpaid overtime wage violations at: (954) 948-8130. Or you can complete the simple form below for submission to us.  Please be advised that by merely submitting this form, no Attorney-Client relationship is formed with the law firm.   You must provide your name,  home or cell phone number, your email address and your zip code in the form.  We look forward to discussing your possible minimum wage and/or overtime pay violations claim.  We are passionate about defending and enforcing workers’ rights for unpaid wages.

 

 

12 examples of violations of federal wage and hour law (FLSA) for breaks and lunches

Employers must pay for all compensable time worked by non-exempt employees including applicable overtime. The determination of what is “compensable” time in an individual situation is a complex one and is best left to a lawyer with experience in labor law.

The following are 12 examples of typical violations of compensable time for non-exempt employees  including violations for rest and meal breaks laws:

1.) Rest and Meal Breaks:

a) Rest breaks of short duration, usually 20 minutes or less, are common in industry (and promote the efficiency of the employee) and are customarily paid for as working time. These short periods must be counted as hours worked. Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer’s rules, and any extension of the break will be punished.

b) Meal breaks. Under federal lunch break law (typically 30 minutes or more) employer does not need to compensate it as work time under certain circumstances. Thus, the employee must be completely relieved from duty for the purpose of eating regular meals. The employee is not relieved if he/she is required to perform any duties, whether active or inactive, while eating.

2.) Principles that are Applied to the Workday and Workweek to Calculate the Actual Number of Hours Worked (Compensable Time):

Employees “Suffered or Permitted” to work: Work not requested but suffered or permitted to be performed is work time that must be paid for by the employer. For example, an employee may voluntarily continue to work at the end of the shift to finish an assigned task or to correct errors. The reason why the employee has continued to work is immaterial. The additional hours are work time and are compensable.

3.) Waiting Time: Whether waiting time is hours worked under the Act depends upon the particular circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time). For example, a secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been “engaged to wait.”

4.) On-Call Time: An employee who is required to remain on call on the employer’s premises is working while “on call.” An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee’s freedom could require this time to be compensated.

5.) Sleeping Time and Certain Other Activities: An employee who is required to be on duty for less than 24 hours is working even though he/she is permitted to sleep or engage in other personal activities when not busy. An employee required to be on duty for 24 hours or more may agree with the employer to exclude from hours worked bona fide regularly scheduled sleeping periods of not more than 8 hours, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night’s sleep. No reduction is permitted unless at least 5 hours of sleep is taken.

6.) Lectures, Meetings and Training Programs: Attendance at lectures, meetings, training programs and similar activities need not be counted as working time only if four criteria are met, namely: it is outside normal hours, it is voluntary, not job related, and no other work is concurrently performed.

 7.) Travel Time: The principles which apply in determining whether time spent in travel is compensable time depends upon the kind of travel involved.

 8.)Home to Work Travel: An employee who travels from home before the regular workday and returns to his/her home at the end of the workday is engaged in ordinary home to work travel, which is not work time.

 9.) Home to Work on a Special One Day Assignment in Another City: An employee who regularly works at a fixed location in one city is given a special one day assignment in another city and returns home the same day. The time spent in traveling to and returning from the other city is work time, except that the employer may deduct/not count that time the employee would normally spend commuting to the regular work site.

10.)  Travel That is All in a Day’s Work: Time spent by an employee in travel as part of their principal activity, such as travel from job site to job site during the workday, is work time and must be counted as hours worked.

 11.) Travel Away from Home Community: Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly work time when it cuts across the employee’s workday. The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on nonworking days. As an enforcement policy the Division will not consider as work time that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.

12.) What does “Employ” Mean under the FLSA?

By statutory definition the term “employ” includes “to suffer or permit to work.” The workweek ordinarily includes all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed work place. “Workday“, in general, means the period between the time on any particular day when such employee commences his/her “principal activity” and the time on that day at which he/she ceases such principal activity or activities. The workday may therefore be longer than the employee’s scheduled time.

 If you feel that you have not been compensated for all the hours you have worked you may call the law office for a FREE  consultation about your claim for minimum wage or unpaid overtime wage violations at: (954) 948-8130. Or you can complete the simple form below for submission to us.  Please be advised that by merely submitting this form, no Attorney-Client relationship is formed with the law firm.   You must provide your name,  home or cell phone number, your email address and your zip code in the form.  We look forward to discussing your possible minimum wage and/or overtime pay violations claim We are passionate about defending and enforcing workers’ rights for unpaid wages.

Ravago Americas LLC, an Orlando, Florida plastic recycler, pays $424,000 in back wages to 195 employees for FLSA overtime violations

WHD Investigation findings: Investigators from the U.S. Department of Labor’s Wage and Hour Division,  found that the employer violated overtime and recordkeeping provisions of the Fair Labor Standards Act (FLSA).

The employer paid workers fixed salaries, based upon a 40 hour workweek, without regard to how many hours they actually worked. When employees performed work before their shifts, after their shifts, during their meal breaks, and/or at home, those hours were neither recorded nor paid for. This practice created an overtime violation when the unpaid time pushed workers’ totals beyond 40 hours in a workweek, and no overtime premium was paid. The company also failed to maintain required time and payroll records.

Resolution: Ravago has signed an agreement with the Wage and Hour Division to:

  • Pay $424,537 in back wages to 195 employees and comply with the FLSA.
  • Install an accurate time-keeping system to capture daily start and end times of employees.
  • Include an accurate record of hours worked on pay stubs for all nonexempt personnel.
  • Perform enterprise-wide training with all managers and employees on proper clock in/out procedures on installed time-keeping system, employee rights regarding compensable and non-compensable time and proper procedures to correct inaccurate payroll caused by a time-keeping error.

If you feel that your employer has not compensated for the overtime hours you have worked you may call  (954) 948-8130  for a FREE strictly confidential consultation about your claim for violation of the minimum wage and/or unpaid overtime wage laws.  Or you can complete the simple form below for submission to us.