Federal DOL...we are screwed ! PostPosted: Mon Mar 14, 2011 4:42 pm Reply with quote Federal DOL...we are screwed ! We recently had a MVC get audited by Fed.DOL, He pays per day rate, They say NO, must be hourly with overtime and must show on pay stub, He may throw us all under the bus just to prove a point. We all may have to pay back labor rates if salary did not cover overtime...This is going to get ugly. PostPosted: Mon Mar 14, 2011 5:49 pm Reply with quote There is nothing illegal about a salary. Only way he would be in trouble is if they aren't being paid at least the minimum wage with the hours they are working... dol probably got a complaint from a current or former employee. Is the contractor a cheap, shady type of guy? PostPosted: Mon Mar 14, 2011 5:55 pm Reply with quote DOL We had the State look into one of our HD Contractors for not paying Hourly and not paying over time .Here in this state you have to pay hourly and over time .Salary can only be paid to managers. He had to pay back something like 20,000 in back pay and now they looking into other contractors as well. New postPosted: Tue Mar 15, 2011 5:47 pm Reply with quote These guys are correct in saying salary must cover at least minimum wage for hours worked. You may only pay an employee salary if he/she fits certain job criteria. They must be executive (high management), professional (scientific etc, like teachers, artists, writers, etc), or administrative (high level secretaries). However, there is a loophole for us. If the hours worked by an employee is managed by another government department, the laws and rules of the Department of Labor are superseded by the laws of that department. This is our saving grace, as our employees are managed by the laws of the Department of Transportation (DOT Hours of Service). I went ahead and did some digging, here is a list from the Department of Labor of professions that are exempt from the FLSA (the law that governs fair pay, minimum wage, overtime requirements, etc). The profession that applies to us, of course, is: Drivers, driver's helpers, loaders and mechanics are exempt from the overtime pay provisions of the FLSA if employed by a motor carrier, and if the employee's duties affect the safety of operation of the vehicles in transportation of passengers or property in interstate or foreign commerce We are employed by a motor carrier, since FedEx holds DOT numbers and regulations for all of our trucks and employees so it trickles down to us. Also listed underneath that, in case that wasn't clear enough, is "Local delivery drivers and driver's helpers". Source: elaws - Fair Labor Standards Act Advisor http://www.dol.gov/elaws/esa/flsa/screen75.asp I hope this helps New postPosted: Wed Mar 16, 2011 8:53 pm Reply with quote DOL/OSHA Myth wrote: However, there is a loophole for us. If the hours worked by an employee is managed by another government department, the laws and rules of the Department of Labor are superseded by the laws of that department. This is our saving grace, as our employees are managed by the laws of the Department of Transportation (DOT Hours of Service). http://www.dol.gov/whd/regs/compliance/whdfs19.pdf FedEx Corp. (FedEx Ground/Home Delivery) hide, dodge, and avoid unionization by using the “supervisory clause” to their advantage through the use of the “loophole” under the US Dept. of Labor’s National Labor Relations Act (NLRA). Establishing independent-contractors/owner-operators and their peers/coworkers as supervisors of their routes and activities creates a safe harbor from the NLRA under intrastate commerce laws/regulations that fall under each States’ local labor provisions. US DOT numbers are registered to FedEx for use on leased vehicles that are initially secured by FedEx; and enables interstate commerce of goods, commodities, and dangerous goods (hazmat). Owner-operators/independent-contractors don’t have any registration of DOT assigned numbers under their specific EIN associated with their own LLC, INC, CORP, and etc… The same would be true of State issued labor laws and locally registered taxes and their relate returns. US DOL/OSHA is the executive administrator and enforcer on behalf of the US DOT and the Surface Transportation and Assistance Act (STAA). US DOT has no direct interaction with employers for hours, wage, and compensation; though the legislation under CFR is under DOT, the powers to be are allocated to OSHA which operates under the DOL. US DOT hours of service (HOS) are actually administered through the US DOL/OSHA and it’s the DOL’s responsibility to administer the appropriate procedure based on your job classification. FedEx’s use of the NLRA loophole indicates to the US DOL that all owner-operators/independent-contracts are actually supervisory positions which denies you of DOT qualified wage and hour exemptions. Many of you may have to sue your local State’s department of labor to clear your business of any payroll liabilities that typically occur under non-DOT job functions. FedEx is trying to have it both ways with the DOT exemption status for those who operate under their DOT registrations and at the same time avoid responsibility under the NLRA; meaning business owners are stuck with the legal issues and contradictions under the applicable interpretation of the law. So, technically, “another government department” isn’t managing wage, hours, and benefits as all human capital management responsibilities will default back to the US DOL, just under different provisions and job classifications. Just remember each labor law is presented and stated by specified agencies: government, DOT, revenue, search & rescue, FAA, NLRA, RLA, FMLA, ERISA, and etc… but the US DOL is the enforcer and executor of all such policies regardless of were the law originates under the Code of Federal Regulations (CFR).