In April 2010, the U.S. Department of Labor (DOL) published its semi-annual regulatory agenda, which is required by Executive Order to detail all the regulations the DOL expects to have under active consideration for promulgation, proposal or review during the coming year.

According to the agenda, the DOL plans to propose a rule that would amend the current recordkeeping regulations under the Fair Labor Standards Act (FLSA).  Under the proposed rule, any employers seeking to exclude workers from the FLSA’s coverage will be required to perform a classification analysis, disclose that analysis to the worker, and retain that analysis to provide to Wage and Hour Division (WHD) enforcement personnel upon request.  The proposal will also address burdens of proof when employers fail to comply with records and notice requirements.  The Abstract on the Department of Labor website says the following:

The Department of Labor proposed to update the recordkeeping regulations under the Fair Labor Standards Act in order to enhance the transparency and disclosure to workers of how their pay is computed and to modernize other recordkeeping requirements for employers.  You can review a fact sheet on these topics here:  www.dol.gov/regulations/factsheets/whd-fs-flsa-recordkeeping.htm.

Before any enactment of these proposed regulations, this may be a good time to review the exempt/non-exempt status of your employees.  As you recall, in 2004 the U.S. Department of Labor (DOL) updated provisions of the Fair Labor Standards Act (FLSA) by redefining the white-collar employee definition and expanding exempt and non-exempt status, i.e., eligibility for overtime.

The criteria to determine whether an organization is covered under the Federal FLSA:

• An enterprise that “has employees who are engaged in commerce or in the production of goods for commerce, or has employees who handle, sell or work with goods that have been moved or produced for commerce by any person.”
• It “has gross volume of sales made or business conducted greater than $500,000 per year.”

Nearly every employer must comply with FLSA regulations.  The DOL has a website which provides further explanation of the FLSA compliance regulation, as well as tools to assist employers with their recordkeeping documents.  For more information, go to their website at:  www.dol.gov/compliance/laws/comp-flsa.htm.

Toby Pearson
952.851.2480
tpearson@careproviders.org

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