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2021 FLSA Compliance Virtual Master Class: Advanced Skills for Wage and Hour Compliance Management

2021 FLSA Compliance Virtual Master Class: Advanced Skills for Wage and Hour Compliance Management

Product Code: WHV01272021


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2021 FLSA Compliance Virtual Master Class: Advanced Skills for Wage and Hour Compliance Management

Wednesday, January 27 — Thursday, January 28, 2021

Remain in compliance while learning from the comfort of your own home! We’re taking our topical master classes to the virtual space! These 2-day, 4-hour-long courses are interactive and educational and offer a unique learning experience that will help you advance your career and keep your organization in compliance with the various laws.

And in 2021, there are several new laws impacting HR and compensation professionals that will go into effect on January 1, such as a new federal minimum wage, a new law that could impact how you classify workers, and other measures put in place to ease the burden brought on by the COVID-19 pandemic.

This virtual workshop is a comprehensive presentation of FLSA issues. Major topics to be discussed include:

  • Federal regulatory, legislative, and court ruling hot spots; and what the practical impact of new standards, rules, and more will be on your workplace.
  • Employee classification: How to navigate the duties tests to cost-effectively determine which employees should be exempt and nonexempt, or whether your workers are independent contractors or employees.
  • The ins and outs of calculating overtime in compliance with the new overtime regulations.
  • Pay equity audits: How to analyze and correct disparate compensation practices by analyzing groupings by job title, job family, pay grade, overtime exemption status, and more.
  • FLSA timekeeping, hours of work, and recordkeeping myth busters: Top pitfalls for staying off state DOL and federal WHD enforcers’ audit radars.
  • Post-pandemic planning: Wage and hour issues to keep in mind in a post-pandemic world.

2021 FLSA Compliance Virtual Master Class: Advanced Skills for Wage and Hour Compliance Management

Agenda

All Times are in Eastern

Day 1: Wednesday, January 27, 2021

Federal Regulatory, Legislative, and Court Ruling Hot Spots for 2021: The Practical Impact of New Standards, Rules, and More
(12:00 p.m. – 1:30 p.m.)
The financial stakes are huge if your company isn’t fully compliant with the Fair Labor Standards Act (FLSA) and applicable Department of Labor (DOL) regulations. It is even more crucial in light of the COVID-19 pandemic.

This opening session will provide a succinct summary of:

  • Which states and localities have established predictive scheduling laws and which states prohibit these laws
  • Where state legislation banning employers from inquiring about applicants’ salary history has already gone into effect and where new legislation is expected to pass
  • The DOL’s final rule providing clarification on how to determine employees’ regular rate of pay and what forms of payment employers can include and exclude in the overtime pay calculation
  • The increased risk of liability for employers under the FLSA for collective and class actions and more
  • The DOL’s final rule on joint employment, which aims to ensure employers in joint employment situations, especially those in franchise arrangements, clearly understand their responsibilities to pay workers at least the federal minimum wage and overtime


Correctly Classifying Employees - Navigating the Salary and Duties Tests to Determine Cost-Effectively Which Employees Should be Exempt and Nonexempt
(1:45 p.m. – 2:30 p.m.)
On September 22, 2020, the U.S. Department of Labor (DOL) announced a proposed rule addressing how to determine whether a worker is an employee under the Fair Labor Standards Act (FLSA) or an independent contractor. The proposed rule establishes an “economic reality” test to analyze whether a given worker should be classified as an independent contractor or an employee. In addition to the test, the rule provides an analysis of the two main factors that would be used in determining a worker’s classification, and three more factors to guide employers in their classification process.

This session is designed to boil down the practical impact of the DOL’s proposed rule on employee classification, as well as, the overtime exemption rule. Wage and hour attorneys will walk you through what to do and how to ensure your organization is in compliance with the law. You’ll learn:

  • Key salary factors to consider when determining whether an employee is exempt or nonexempt, including salary level, the salary basis test, additional payments beyond an employee’s salary, and fee basis payments
  • Which exemptions are not subject to the salary requirements
  • The ins and outs of highly compensated employees
  • How often the DOL will update the salary level going forward and the fate of automatic updates
  • Cost-minimizing strategies for classifying employees
  • How deductions from pay enter into your analysis
  • How to develop a communication plan when it comes to overtime classification
  • How to head off concerns that going from exempt to nonexempt status is a demotion
  • Where the duties tests stand now that the DOL’s overtime rule is in effect
  • Key test factors to determine whether an employee passes the duties tests for the executive, administrative, professional, computer professional, and outside sales exemptions, as well as employees in education
  • Whether you should change an employee’s duties to qualify the employee for either the exempt or the nonexempt classification
  • How important job titles are when it comes to passing the duties tests
  • Why some employees labeled “managers” and “assistant managers” may be nonexempt and entitled to overtime in the DOL’s eyes
  • Tips for avoiding a DOL overtime audit


The Ins and Outs of Calculating Overtime

(2:45 p.m. – 3:30 p.m.)
Overtime calculations can get tricky when employees are paid a salary but work over 40 hours, they work a different number of hours each week, or they are paid by the piece-rate method. What about fluctuating workweeks, commissions, and compensatory time? These scenarios can end up costing employers millions when they fail to correctly pay overtime. It is vitally important for employers to make confident and correct calculations. You’ll learn:

  • What a “workweek” is under FLSA rules
  • The proper timing of overtime pay
  • When compensatory time can be used legally
  • How payments on an hourly basis, on a salaried basis, and at different hourly rates differ
  • Key factors regarding fluctuating workweeks
  • Payment rules for piece-rate and day-rate employees
  • How commissions factor into overtime payments
  • The rules that apply to fire protections and law enforcement personnel
  • What to include when determining total compensation


Day 1 Questions and Answers

(3:30 p.m. – 4:00 p.m.)
We’ll wrap up the day by giving you the opportunity to get your specific questions answered by attorneys well versed in the complexities of wage and hour compliance, with clear instructions for adjusting your practices in light of the very latest legal developments.


Day 2: Thursday, January 28, 2021

Pay Equity Audits: How to Analyze and Correct Disparate Compensation Practices by Analyzing Groupings by Job Title, Job Family, Pay Grade, and Overtime Exemption Status and More
(12:00 p.m. – 1:30 p.m.)
Equal pay is hot—and pay discrimination claims are on the rise. In the past 2 years, more than a dozen states and several major cities have passed new, aggressive equal pay laws designed to make it easier for employees to bring (and win) pay discrimination claims. This growing “patchwork” of federal, state, and local laws poses particularly worrisome challenges, especially for multistate employers.

This session will outline how to take a proactive and strategic approach when addressing the growing pay equity challenges your organization faces.

You’ll learn:

  • How two major federal statutes prohibiting gender-based differences in pay—the Equal Pay Act of 1963 (EPA) and Title VII of the Civil Rights Act of 1964 (Title VII)—could spark costly legal liability for your organization
  • The growing patchwork of new state and big-city equal pay laws and what they mean practically for your company
  • How to take advantage of the “safe harbors” under many new state equal pay laws to protect your organization from claims and liability
  • How to conduct a review of your company’s wage-setting practices to find and fix unexplained disparities so you can get your compensation-planning practices on the right—legal—track
  • How to establish the all-important privilege for your pay equity audit
  • How to determine groupings for analysis by job title, job family, pay grade, and overtime exemption status
  • Examples of “similarly situated” and “comparable” positions
  • Factors you must consider, including date of hire, legacy data, time in grade, and more
  • Running the numbers for large, medium, and small groups—when to apply regression analysis and when something else is needed
  • What to do if you can’t explain a pay disparity
  • Tips for avoiding claims of gender-based wage discrimination


FLSA Timekeeping, Hours of Work, and Recordkeeping Myth-Busters: Top Pitfalls for Staying Off State DOL and Federal WHD Enforcers’ Audit Radars
(1:45 p.m. – 2:30 p.m.)
There is no federal law that sets out how often or in what form you must pay wages, but you have a lot of other issues to contend with. For example, how do you pay employees who work 24-hour shifts but sleep during the shifts? If an employee shows up for work early, do you have to pay the employee? What do you do with employees who forget to punch in? What about for those who travel for work after hours? This session will put to rest myths that could be exposing your company to costly liability. We’ll cover important issues such as:

  • Tracking time, punching in and out, rounding, and the de minimis rule
  • What counts as hours worked
  • On-call time
  • Meal and rest periods
  • Sleep time
  • Commuting and travel time
  • Waiting time
  • Training time
  • Changing clothes
  • Pre-/postwork time, including time spent in postshift security screenings
  • Charitable/civic activities
  • Permissible and impermissible pay deductions for nonexempt employees
  • Examples of when partial-day pay deductions are permitted for exempt staff
  • Minimum wage requirements under your state’s law(s), including examples of how tip pools/credits could land employers in hot water
  • Final paychecks—common pitfalls to watch out for and mistakes that could cost you under your state’s applicable law(s)
  • Recordkeeping


Post-Pandemic Planning: Wage and Hour Issues Employers Need to Consider

(2:45 p.m. – 3:30 p.m.)
COVID-19 has impacted employers in unprecedented ways. Employers faced with a pandemic need to know how to manage a variety of wage and hour issues, including final paychecks, volunteering, partial workweeks, sickness and disability deductions, long-term pay reductions, and furloughs. Federal law has addressed many of the factors to consider when preparing for or working through a pandemic, as outlined below. Keep in mind that individual state laws or collective bargaining agreements may apply, as well. You’ll learn:

  • What happens if an employer is unable to pay employee wages
  • The importance for employers to understand their state laws on final paychecks
  • The strict laws around volunteering under the FLSA because during a pandemic, companies may fall into the legal trap of looking for assistance in the form of volunteers
  • How to handle the issues surrounding partial workweeks because a business closes
  • What to know about sickness and disability deductions, which is an area of confusion for some employers
  • The ins and outs of long-term pay reductions
  • The rules on furloughs for exempt and nonexempt employees
  • Whether you can ask employees to work longer hours
  • Whether you can ask employees to perform job functions that are different from their usual work
  • What you need to know about telecommuting, including whether you can require it, recordkeeping, and how to handle employees who are unable to work from home


Day 2 Questions and Answers
(3:30p.m. – 4:00 p.m.)
We’ll wrap up the day by giving you the opportunity to get your specific questions answered by attorneys well versed in the complexities of wage and hour compliance, with clear instructions for adjusting your practices in light of the very latest legal developments.


Agenda subject to change —

2021 FLSA Compliance Virtual Master Class: Advanced Skills for Wage and Hour Compliance Management

Your Faculty

Charles H. KaplanCharles H. Kaplan, Partner, Hodgson Russ LLP

For more than 40 years, Charles H. Kaplan, a Partner in the Labor & Employment Law Practice in Hodgson Russ LLP’s New York City office, has counseled employers, throughout New York State and around the nation, concerning the law of the workplace. He has represented management in federal and state trial and appellate courts; before the U.S. Department of Labor, the U.S. Equal Employment Opportunity Commission (EEOC), the National Labor Relations Board (NLRB), and other federal and state agencies; as well as in arbitrations and mediations. He has also advised companies on labor and employment law issues in mergers, acquisitions, and bankruptcies. Mr. Kaplan earned his B.A. at Yale University. A graduate of Harvard University’s J.D./M.B.A. Joint Program, he received an M.B.A. from Harvard Business School and a J.D. from Harvard Law School.

With regard to the federal Fair Labor Standards Act (FLSA) and other wage and hour law matters, Mr. Kaplan has defended employers in FLSA individual and class actions in federal court in New York and New Jersey, and has also counseled management extensively concerning compliance with federal and state wage and hour laws.

His broad range of experience also includes handling matters involving:

  • Employment discrimination, sexual harassment, retaliation, equal employment opportunity, and affirmative action
  • Wrongful discharge, defamation, and other workplace torts
  • Employment and wage and hour collective and class action defense
  • Employment mediations and arbitrations
  • Labor relations, union organizing and corporate campaigns, collective bargaining, labor arbitrations, unfair labor practices, strikes, picketing, boycotts, and labor injunctions
  • Human resources administration, personnel policies, employee handbooks, and employment at will issues
  • Disability accommodation, family and medical leave, earned safe time and sick time, employee dishonesty and disloyalty, identity theft and business fraud, drug testing, workplace violence, social media, privacy, independent contractor, whistleblower, occupational safety and health, joint employer, government contracting, and prevailing wage matters
  • IRCA compliance, Form I-9 audits, and immigration and customs enforcement proceedings
  • Foreign-owned employer issues
  • Plant closings, mass layoffs, downsizings, and federal and state WARN Act issues
  • Employee benefits matters, deferred compensation issues, ERISA litigation, and multiemployer pension plan withdrawal liability matters
  • Executive employment contracts, trade secrets, confidentiality agreements and restrictive covenants
  • Partnership disputes
  • Manager and supervisor training
  • Unemployment insurance proceedings and workers’ compensation retaliation claims
  • Public sector workplace law
  • Americans with Disabilities Act Title III and state law disability access issues concerning places of public accommodation and website accessibility

Glen P. DohertyGlen P. Doherty, Esq.
Partner, Hodgson Russ, LLP
Glen is a partner in Hodgson Russ’ Albany office, where represents employers and management in all aspects of labor and employment law, with particular emphasis on employment discrimination, wage and hour litigation, wage and hour collective and class actions, multiple-plaintiff litigation, sexual harassment, employee benefit litigation, non-competition and wrongful discharge litigation, employee-contractor classification, union organizing campaigns, unfair labor practices, collective bargaining and withdrawal liability. 

His practice includes advice and counsel on a broad range of matters such as discipline and discharge, wage and hour compliance, workplace investigations, governmental audits, drug and alcohol testing, safety and health compliance, handbooks, EEO compliance, plant closings and negotiation and drafting of critical employment documents. 

Consistent with the breadth of his practice, Glen is a frequent lecturer on a wide range of employment and labor topics for various bar associations and employer groups. He has also written on such diverse topics such as the litigation of discrimination claims, interviewing, background checks, wage and hour audits, offer letters and employment agreements, workplace investigations, arbitration of individual employment claims, settlement agreements and lawyers as employers. Glen is a graduate of Cornell University’s School of Industrial and Labor Relations and Cornell University’s School of Law.

Peter C. GodfreyPeter C. Godfrey
Partner, Hodgson Russ, LLP
Peter concentrates his practice on management-side labor and employment law and employment tax issues. He represents employers in matters such as wage and hour litigation, including class actions, labor negotiations and arbitrations, employment taxation and worker classification matters, executive compensation and noncompete matters, discrimination and other employment-related litigation and employment-related contracts. He also has substantial experience in advising employers on labor and employment law issues that arise in mergers and acquisitions and reductions in force.

Peter practices regularly before federal and state courts and before numerous administrative agencies, including the federal and state departments of labor, tax agencies, the National Labor Relations Board, the New York State Public Employment Relations Board, the Equal Employment Opportunity Commission, and the New York State Division of Human Rights.

Peter is the town attorney for the Town of Grand Island, New York. He has also recently served as a member of the Firm's Board of Directors, Compensation Committee, and as the Firm's Diversity Partner. Peter exclusively practices U.S. law and is admitted to practice in New York.

John M. GodwinJohn M. Godwin
Partner, Hodgson Russ, LLP
John focuses his practice on management-side labor and employment law as well as employment tax law. He assists employers with wage and hour matters arising under federal, state, and local laws, including audits and class and collective actions, all aspects of employee-versus-independent-contractor classification, as well as federal and state Worker Adjustment and Retraining Notification (WARN) Act compliance planning and litigation.

John also assists employers with compliance issues and the defense of claims arising under numerous labor and employment laws, including the Family and Medical Leave Act (FMLA), New York Paid Family Leave (PFL), the equal employment opportunity laws, including the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act of 1964, the New York Human Rights Law, and other corresponding state and local laws.  In addition, he regularly advises clients regarding restrictive covenants, commission and incentive compensation plans, paid time off obligations, employment policies and practices, discipline and discharge matters, workers’ compensation coverage and premium issues, and unemployment insurance audits and appeals.

Kinsey O’BrienKinsey O’Brien
Senior Associate, Hodgson Russ, LLP
Kinsey represents and advises private and public employers in all aspects of labor and employment law. She regularly counsels employers on compliance with federal wage  and hour laws, worker classification issues, inclusive hiring, and employment practices including leave and accommodation management, avoidance of discrimination, harassment, and retaliation claims, discipline, and discharge, and workplace policies and handbooks. Working with her clients as a strategic business partner, Kinsey helps management and human resource professionals mitigate risk through all phases of the employment relationship. Kinsey is also highly experienced in conducting and advising clients on investigations into alleged harassment, discrimination, retaliation, and other misconduct by employees.

Kinsey also regularly defends employers in a broad array of employment-related litigation, including allegations involving discrimination, harassment, retaliation, leave and accommodations, whistleblower actions, contract disputes, and federal and state wage and hour statutes. She is experienced in all phases of litigation, including handling administrative charges and investigations, drafting pleadings, conducting discovery, motion practice, class and collective certification issues, mediation and settlement negotiations, and trial. 

Before joining Hodgson Russ, Kinsey worked for a law firm in Buffalo. She also clerked for the United States Attorney’s Office, Western District of New York and worked in the office of a United States Senator.