Juris Practical

Overtime Pay & Workplace Law

By Phillip B. Russell, Esq.

 Phillip Russell, Esq., was tapped to present two recurring breakout sessions on the closing day of TENCon 2008 in Anaheim: Compensation Issues for Independent Agencies— Who Gets Overtime Pay? and Workplace Law for Independent Agencies. This article explores the highlights of those sessions.

Workplace Legal Issues for Agencies
Insurance agencies have three primary functions: policy sales, customer service and carrier relationships. To fulfill business goals in all three of these areas, agencies must have qualified, experienced and satisfied employees. Indeed, many agency founders and executives consider recruitment and retention of sales, customer service, and other insurance industry professionals to be their most important duty.

However, modern workplace trends and dramatic developments in federal and state employment laws have made employment a high-risk function of any business. Managing that risk while maximizing management discretion in hiring, compensation, discipline, performance and termination decisions is critical to long-term business success.

In this interactive workshop, I will discuss the most important policies and practices that prudent agencies should have in place to both minimize risk and maximize management discretion. Participants will learn:

• The most important question all employers should have on their employment applications

• What employers can and can’t ask when interviewing applicants

• How to handle I-9s and immigration-status documents

• The most important policy of any employee handbook

• The most common and critical mistake employers make when conducting performance reviews

• The three major types of terminations and how to handle them.

There are many other topics that employers deal with every day that we will discuss. I look forward to seeing you there!

Wage and Hour Issues for Agencies
In the entire range of possible employment law issues a business could face, violation or alleged violation of the federal Fair Labor Standards Act (“FLSA”) is the most likely and risky. The FLSA requires employers to pay most employees the applicable minimum wage and time-and-a-half for all hours worked over 40 in any workweek.

One of the most dangerous myths permeating workplaces today is this: “Well, we don’t have to pay overtime because we pay our employees a salary.” However, whether a business can legally pay a person on an hourly or salary basis depends on the person’s primary duties. Before a business can lawfully pay an employee a salary (and therefore not pay overtime), it must first determine whether the employee’s primary job duties fit within one of the exemptions recognized by the FLSA and its regulations. The four main white-collar exemptions that may apply to common positions within agencies include executive, administrative, professional and outside sales. The determination of whether particular positions are exempt focuses not on the position’s title, but on the exact daily duties fulfilled by the person holding the position.

Unfortunately, many agencies have decided to pay some employees on a salary basis without analyzing specific job duties to be sure that one or more of the exemptions apply.

In this interactive workshop, we will discuss some of the most problematic positions in an agency, such as customer service agents, salespersons and office managers. We will also discuss the best policies and practices for agencies to accurately track all hours worked by non-exempt employees.

For those of you at TENCon in Anaheim, I hope to see you there!

Phillip Russell (prussell@constangy.com) is a labor and employment lawyer and a partner in the Tampa office of Constangy, Brooks & Smith, which has represented employers exclusively since 1946.