welcome to this presentation covering
the Fair Labor Standards Act we've made
good progress we are now up to the child
labor law section so I'm going to
fast-forward to slide 79 and we will
resume at this point so we're going to
talk about a Youth Employment and really
there are two categories of youth I
guess you could say three but one is is
pretty much not relevant to the business
world because those under the age of
fourteen are pretty much non employable
unless we're talking paper routes or
something along those lines so that's
the first category but for businesses
that's essentially the null category
fourteen and fifteen year olds are
usually not employable either because
they are very very limited in what they
can do in the hours in which they can do
it so most of the activity with youth
employment is going to be with 16 and 17
year-olds under federal law 16 and 17
year-olds don't have any limitations
upon the number of hours or the hours in
which they can work and there are some
limitations as to particular tasks they
can do for example they can't operate a
service elevator they can't operate a
paper baler and they can't climb a
ladder those are three that sometimes do
come up so let's pause here and look at
a website the Department of Labor
website which gives a kind of a nice
summary of this so here here are the
rules if so if you were to go to the
youth rules dot gov website this goes
through the circumstances so if I'm a
under 14 really can't do much of
anything you can Newt deliver newspapers
and babysit on a casual basis if I'm 14
and 15 I can do several things but you
can see there's very much limitations as
to when I can do
during the school year and there's a lot
of limitations as to the type of work
that I can do and then let's look at the
main category which is 16 and 17 year
olds there's no limitations as to the
time but there are hazards that a youth
is limited from doing and of course once
I had 18 there are no limitations
anymore at all
so Youth rules is a neat website for
both employers and for people who are
young who might be interested in the
roles regarding employment under those
circumstances as most employers are not
going to employ people other than 16 and
17 year olds this is probably the most
important category the things that 16
the 17 year olds cannot do sometimes
these these tasks don't seem inherently
risky and so the the youth may do them
even after they're told not to do them
or someone might forget hey that that
person is really still 17 or something
and so it does require some training and
some oversight to make sure there's
compliance of these rules here are the
actual limitations and hours of the
folks under 16 I'm not going to expect
that you know those particular time
limits state law controls in this area
in May states have much more burdensome
requirements on employers in the area of
child labor for example the our
limitations may extend beyond age 15 and
they may have very significant fines if
there's a violation even if there's just
a small technical violation I've seen
situations in which you have somebody
working just a minute or two longer than
what the person was supposed to work and
as a result there was a significant fine
as a result many employers will
intentionally schedule students so that
they are scheduled to work at least an
hour less than what they could work on
that particular day that way if they
don't clock out exactly when they're
supposed to they're not they're not
going to be in a situation when there's
a violation states also have some
additional requirements for example it
may be necessary
for the employer to follow the school
calendar in that particular jurisdiction
that can raise issues because it could
be that your business location is in one
school a school zone and the child may
live in a different school zone or it
could be that the child is home-schooled
or perhaps has dropped out of school and
so really those rules may not fully
apply to him or her so if you're going
to do if you encounter a situation like
that it's probably a good idea to
contact an attorney or possibly to reach
out to the state agency to see how those
types of situations ought to be handled
another common thing that we see in this
area are work permits these can present
themselves in lots of different ways
usually they're going to be something
that the student goes to the school and
requests and with this document the
student is in permitted to work it gives
kind of a certified record of the
student's age and send them to school
where the student attends so that can be
coordinated with whatever the rules are
in that particular state about school
attendance a Texas does not require work
permits and so that's not an issue here
but of course you may be working for an
employer who has units in other states
that you need to be aware of that
generally child labor laws in Texas are
not more restrictive than federal laws
in fact the reverse is true so we don't
get a lot of attention here in Texas on
child labor but just be aware if you
move to a different state the result
could be significantly different and
later on in this presentation I'm going
to show you some more Texas specific
information that's
of our federal child labor section we'll
talk more about child labor down when we
get to Texas so let's move on to the
Equal Pay Act I'm not going to spend
much time on this because we have a
significant amount that we'll cover in
the sex discrimination section on the
Equal Pay Act but here's just a very
brief reminder some of the things that
we talked about in that module the Equal
Pay Act is an amendment to the Fair
Labor Standards Act it was passed in
1963 which is a year before the Civil
Rights Act of 1964 was passed
not surprisingly since 63 cousin for
sixty-four right and this was really the
first law that was designed to address a
gender discrimination and it's not
nearly as broad a statute as a title 7
is with respect to gender discrimination
it's kind of the first attempt I guess
you could say of legislating in this
area and it was really designed to
address situations where men and women
were doing pretty much the same job and
the employer paid men or women possibly
but usually was men significantly more
money for doing the same work and that
of course became illegal in 1963 and
eventually became illegal again in 1964
so really a individual who is a victim
of wage discrimination based upon gender
can sue under either one or both of
those statutes here's a little overview
about how to prove that prima facie case
we've talked about prima facie case
before you can see this is the same
standard that we saw under Title 7 ok we
need to have one or more persons of the
opposite sex working the same
establishment and there was you have a
comparator of the opposite sex you may
recall in the prima facie case examples
that we talked about under Title 7 you
had to prove that a person was in a
protected class well in this situation
the person is proving their remember of
a protected gender which is of course
your protected class then you have to
show that there's some type of adverse
action in this case it is the higher pay
that the person is receiving and then
you need to prove the person is
qualified well presumably because the
person is already doing a job that's
kind of not necessary to prove that but
here we're getting at the idea that the
work is
equal now there are some exceptions in
situations in which the employer can not
be will not be held to be liable one is
if there's a seniority system and let's
say we'll say the male is more highly
compensated let's say the male is has
been working there for a longer period
of time or let's say there's a merit pay
system and the male has just performed
better he's more productive he's more
precise in his work whatever the
standard is he's doing better at it or
it could be that he produces more work
maybe it's not better work it's just
more work or it could be some other
factor he's the boss's son for example
or boss's child I guess I should say so
those are differences that could be
supported and would not be evidence of
the Equal Pay Act even though we usually
think about women being the
beneficiaries in Equal Pay Act there's
no reason why a man couldn't make an
Equal Pay Act claim and there's no need
that the titles of the men and the women
incumbents in the positions have to be
the same it's not unusual especially
historically it wasn't unusual for two
positions that were quite similar to
have different names associated with
them and such that women typically were
sire gained to this job and men were
typically segregated into that job that
the titles themselves is not controlling
and we talked about comparison
individuals of the opposite sex who are
being paid more than the plaintiff the
process by which you evaluate whether
this situation is right whether the jobs
really are comparative would be a job
evaluation and we've already talked
about the prime aphasia case generally
speaking you are not supposed to have
pay pay secrecy policies you can't have
an under under labor law under the NLRA
and you can't have it under the PA the
idea is how was the person supposed to
know that he or she has been the victim
of some type of discrimination if he or
she can't get information about what
other people earn now of course this
doesn't mean that the employer can or
should publicize the pay of other
individuals and also doesn't mean that
required to tell other people what I'm
earning it just means that I can't be
disciplined if I happen to volunteer
that information so that's an important
thing to keep in mind many employers
think especially unsophisticated think
that they can require their employees to
be to keep that information confidential
and they can take disciplinary action if
the employee doesn't that is incorrect
so we are now done with Equal Pay Act
and now we're ready for the Texas
specific wage information please pay
particular attention to this because
this is Texas specific and so it won't
necessarily be in other resources that
you might be looking at the but your
best source for this information is
obviously this PowerPoint in this
lecture so let's look first of all at
Texas child labor law so Texas does
limit the work hours of 15 and 17 year
olds but the limitations as we'll see in
a second are less restrictive than the
FLSA so when the state law is less
restricted than the FLSA the FLSA
controls in jurisdictions where the
state law is more restrictive early in
their words more protective of the
minors then that the state law will
control over the FLSA so in our case the
Texas law really doesn't have any impact
you may be wondering well why do we have
a law that doesn't have any
applicability it could be that our law
predates the FLSA although I think
that's unlikely I think a more likely
explanation is that there are some very
small category of jobs that may not be
covered by the FLSA because they don't
involve interstate commerce and so this
was an attempt by the Texas Legislature
to to some extent regulate that type of
employment by minors as I said before
Texas does not require a youth permit
here is our statute I just copied it out
of here and we can see that a 14 or 15
year old can work up to eight hours a
day up to 48 hours a week and these are
the hours that he or she can work
I'm gonna show the statute now here we
go
not the statute this is the statue I'm
going to show you some other Texas
websites so this is the agency that
handles child labor claims is the Texas
Workforce Commission so I have here the
Texas child labor law section here and
you can see they talk about prohibited
occupations for 14 and 15 year-olds
let's scroll down so you can see here
and it talks about the various the hours
that they can work the you can see they
contrast it with the federal law and
they talk about permitted professions
for 14 and 15 year-olds and prohibited
professions for 14 and 15 year-olds and
then here they have a prohibited ones
for 16 and 17 year-olds so that's it
kind of an overview I'm not going to
expect you to know any of these details
as I said before really in this area of
federal law is going to be the
controlling source so let's talk about
payday issues this is one of the areas
that we do see that there are some
requirements under state law that we
don't see under federal law one of the
requirements is that if a person is
salaried or exempt he or she must be
paid at least once a month in some
states the payment requirement is more
frequent than that non-exempt employees
in other words we're talking about our
layer commissioned there was non
management employees need to be paid at
least twice a month and these dates need
to be specified put on a poster that's
available for employees to see here is
the statute so you can see the exempted
workers need to be paid less once a
month
they're non-exempt around the 1st and
the 15th and a poster needy needs to be
posted to that effect
let's talk
discharge situations if a person is
discharged he or she can expect to be
paid or should be paid by the sixth day
after the employment ended I think I
talked previously about the law in
California which requires that payment
be made immediately and what as a
practical matter happens is that the
employer in California doesn't actually
process the termination until he or she
gets the check in Texas because we have
six days to process that usually the
employee is in a willful turn you know
in a theft situation or something
there's a very clear cut you gotta fire
the person situation in most cases in
Texas you're probably going to go ahead
and fire them once you've decided that's
the right course of action and then you
can mail a check and they're really
usually isn't a need to delay
communicating the decision since you
have enough time to get the check into
that person's hands so this is the rule
it applies when a person is discharged
but when a person resigns you just have
to pay them by the usual next state so
you process their pay just like you
would anybody else and finally in Texas
the employer has to follow whatever the
agreement is between the employee and
the employer about how commissions and
bonuses ought to be paid this can be a
source of tension in these type of
situations I've seen it percolate up
when an employer has a complex pace
system and maybe the employee wasn't
really fully understanding it and so
when he is in his or her employment ends
he or she has a different understanding
about how the Commission's will be paid
in most of these cases the Texas
Workforce Commission referee is going to
err on the side of hearing the employee
yeah I mean for a lot of reasons for one
reason whoever is is coming back and
saying well no that's not what we said
has done this presentation 50 times and
he really doesn't remember what he said
to this particular worker number one
number two there's a pretty reasonable
chance that whoever communicated and
simply may not even be employed there
anymore number three just generally
speaking in the Texas Workforce
Commission or any similar agency there
is definitely a sense that the employee
gets benefited out after all the
employees the one who is kind of out of
work and so as a result it's a good idea
especially when you're talking about
rather complex payment strategies to
actually have it written out very
precisely have an attorney review it and
have the employee sign it and date it so
there can be no question so even if the
employee says well that's not what was
when I was told well but you sign to
this document and this document explains
the procedure you also want the actual
document to be relatively easy to
understand if you can't explain the pace
system within a page it's probably not a
very good pace system because the goal
of a pace system is to motivate the
employee to do the things you want the
employee to do and you want the
motivation be lawful well if it's so
complicated the employee routinely
doesn't understand it it's not very
motivating so if you if it can't be done
simply and transparently within the page
probably within half a page it's
probably something that would benefit
from more work and here is the
information about the sixth day
discharge the next regularly paid pay
day and then here's the information
about payment of bonuses etc so I'm
going to show you the Texas paid a
statute information it's the same a
agency that is child labor it's the
Texas Workforce Commission and you can
see here we have the final payment
within six calendar days of discharge if
the person resigns it's the next
regularly scheduled pay day now we can
see up here
here we have vacation is not required to
be offered if the employer offers those
benefits in writing the employer has to
follow whatever his or her policy is so
if you offer a vacation pay you can't
change your mind now one thing that
comes up in this area is let's say that
you happen to have a vacation system in
which vacation pay say it accrues you
know on January 1st so you get let's say
all employees get to Easter vacation
kind of put in their bucket on January
1st the employee quits on December 29th
he's worked virtually the entire time
maybe he's even given two weeks notice
so he really does think he's going to
work into the next year and he perhaps
is counting on getting those two weeks
of pay at the end of his employment well
the employer can go ahead and accept his
resignation effective immediately and
not pay out that time because according
to the pay plan for this employer that
the two weeks is deposited on January
1st and he won't be employed on that day
I'm not suggesting that's a good policy
or that's a smart way of handling those
types of issues but it is something that
would be lawful under the Texas rule
other states have different answers that
other state senators require some kind
of accrual system so it's not deposited
you know in one lump sum on January 1st
but it may be you know if it's if it's
ten days of vacation pay maybe it you
know essentially is like you know seven
and a half hours a month or something
like that so that if he actually leaves
on December 29 he's gonna essentially
get you know thirteen and a half or
sumia nine and a half days maybe a
little bit less than the ten days that
he would have gotten on January 1st
so at this time we've covered all of our
topics here's some things to remember be
sure you're properly classifying your
workers err on the side of designating
them is hourly paid folks because that
is the safer course of action and when
they are salaried make sure you do
periodic audits to make sure that the
salaried designation is still
appropriate be sure that you're
recording hours appropriately that your
beginning and ending the time worked as
that should be done and that your
supervisors and managers understand how
to address irregularities when a worker
clocks in early or clocks out late or
works without necessarily the right
authority to do so keep in mind that
breaks if they're under 20 minutes need
to be paid and in Texas they don't have
to be offered but if they are offered
they need to be paid if they're under 20
minutes also keep in mind there the fact
that meal period should be at least 30
minutes well hope that you've enjoyed
this presentation that you found it
helpful for you as always if you have
questions about the material please
don't hesitate to contact me my email is
C groover at Collin DBU or better yet
stop by I'd be glad to talk to you in
more detail about these topics and thank
you for your attention and I hope that
you have a wonderful day bye-bye
