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Commentary: Labor Department Continues Its Focus on Construction Industry

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Minimum Wage and Overtime Requirements

The DOL, of course, will continue to investigate whether construction employers are complying with the FLSA’s minimum wage, overtime, recordkeeping and child labor requirements. Among others, employers should pay careful attention to the following areas:

• Employers must be careful to record and pay for all hours worked.  “Work” can include, for example, preparatory activities like truck-loading, worksite cleanup at day’s end and travel time.

• Employers must ensure that all overtime hours are recognized and properly paid.  This includes work done at different jobsites or in different jobs.

• Employers must correctly calculate each employee’s “regular rate.”  With a few exceptions, all payments to a nonexempt employee must be included in the “regular rate” calculation.

• Employers must be careful not to run afoul of the FLSA’s minimum wage or overtime requirements if they impose work-related costs, expenses, fines and so forth that directly or indirectly reduce an employee’s pay below the legally required amounts. For example, an employee who is required by the employer to purchase tools or equipment generally cannot be compelled to bear such costs if doing so cuts into the minimum wages due.

• Employers must make sure that employees classified as exempt from minimum wage or overtime requirements meet all of the FLSA’s requirements. FLSA exemptions typically apply only if certain duties and/or pay requirements are met. In the construction industry, employers often misclassify leads, crew chiefs or other small-unit supervisors, bid-preparation staff, technically-adept employees carrying the title “engineer,” drafters, and CAD specialists, among others, as exempt.  

• Employers must comply with the FLSA’s child labor restrictions for workers under 18. Child labor violations can result in substantial monetary fines and evencriminal penalties.

Employers also should remember that state or local law may impose additional requirements. Always make sure to check whether such requirements exist.

The DOL continues to aggressively pursue violators of federal wage and hour laws, and construction employers in particular. Employers should act now to identify and correct any compliance problems.

Darin Mackender is a partner with the Denver office of Fisher & Phillips LLP (www.laborlawyers.com) , which represents employers nationwide in labor, employment, employee benefits, and business-immigration matters.  His practice focuses on all areas of labor and employment law. For additional information, contact him at 303-218-3650 or at dmackender@laborlawyers.com.

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