Dept of Labor's Top 10 FAQs

Kelley Baker

Karen Haase

kbaker@hslegalfirm.com

khaase@hslegalfirm.com @KarenHaase

Steve Williams

Bobby Truhe

swilliams@hslegalfirm.com

btruhe@hslegalfirm.com @btruhe

THE NEBRASKA DEPARTMENT OF LABOR TOP-10 The Nebraska Department of Labor (“NDOL”) recently published its Top-10 Most Frequently Asked Questions. School boards and administrators should take notice of the questions being asked to the NDOL, because they represent the most common issues facing employers and employees.

We have supplemented the NDOL’s comments. #1.

How quickly must an employer pay an employee after they are terminated or quit?

The employer must issue final payment on the next regularly scheduled pay day, or within two weeks, whichever occurs soonest. #2.

What is Nebraska’s current minimum wage?

Nebraska’s minimum wage is $7.25 per hour, so long as the employer has four or more full or part-time employees. #3.

Are there restrictions on hiring minors in Nebraska, and what hours are minors allowed to work?

Minors must be at least 14 years old, and minors under 16 must present an Employment Certificate from the school district in which they reside. Under Nebraska law, 14 and 15-year-old minors cannot work more than 8 hours per day, 48 hours per week. Fourteen and 15-year-olds must work between 6:00 AM and 10:00 PM. There are certain exceptions to these rules for agricultural employers and children working for their own parents.

Federal labor laws differ from Nebraska laws in a few ways. For example, 14 to 15-year-old minors under the Fair Labor Standards Act are limited to 40 hours in a week and have even greater restrictions when school is in session. If you intend to employ minors, especially those under 16, you should consult with your attorney.

#4.

Do I need to offer a break every 4 hours?

No state or federal law requires a break every four hours, though many employers offer them. #5.

Can I deduct cash shortages from my employees’ paychecks?

Under the Nebraska Wage Payment and Collection Act (“WPCA”), an employer can only deduct shortages from an employee’s paycheck if (1) the employer has written authorization from the employee to make such deductions, and (2) the deductions do not reduce the employee’s wages below applicable minimum wage rates. If you have contracts for your employees, this is an important provision to include. If not, you may want to consider implementing employment contracts or at least obtaining WPCA authorizations. #6.

What rights do I have under law to terminate employment?

Of course, certificated employees such as teachers and principals are protected by the tenure laws. Classified employees and their school district employers have equal rights to terminate employment, because Nebraska is an “at will” employment state, unless there is an employment contract in place defining the term of employment. However, the NDOL warns employers and directs employees that discrimination on the basis of “age, race, sex, etc.” are illegal. Keep in mind that local ordinances, like the Lincoln and Omaha Fairness Ordinances recently passed can also affect the employment relationship. #7.

Am I entitled [required] to give employees a lunch hour?

Teachers are entitled by statute to a “duty free lunch.” Other school district employees (e.g. custodians, paraeducators, secretaries) are allowed lunch hours solely at the discretion of the employer. #8.

What are the law’s provisions for paying students?

As mentioned above, the FLSA has certain requirements for paying students. In Nebraska’s Wage and Hour Act, students under 20 years old may be paid a training rate at 75% of minimum wage—$5.44 per hour (.75 x $7.25)— for the first 90 calendar days of employment. However, no more than 25% of the total payroll may be paid at the training rate. Under the FLSA, the training rate is only $4.25 per hour, so this is one area where Nebraska requires more than the FLSA.

#9.

Am I required to pay overtime, and can I make overtime mandatory?

Under Nebraska law, assigning work duties and hours of work is the employer’s discretion. Overtime is governed by the FLSA, where employees must be paid at 1.5x their regular hourly rate for all hours worked over 40 in a workweek. In other words, yes, an employer is required to pay overtime and can require more than 40 hours of work in a given week so long as the employer pays overtime. As a public entity, school districts are allowed to give compensatory time in lieu of overtime, but you must follow a process to do so. #10. When do I have to pay fringe benefits?

Fringe benefits are not required by law for school districts. If benefits such as vacation pay, sick pay, and paid holidays are agreed to in a negotiated agreement in an individual contract, the employer loses the discretion to rescind those benefits for the contract period. Unless previously agreed to, only vacation benefits must be paid upon termination of employment under Nebraska law.

CONCLUSION The questions asked of NDOL may not capture the items which are most important to school districts. However, the “top-10” questions identified by NDOL should certainly be studied by all school boards and administrators. The failure to pay close attention to the compliance requirements in these 10 areas is risky since it is pretty obvious the employees and plaintiffs’ attorneys who represent employees will have read the NDOL “top-10” as well. Compliance with all state and federal employment laws is important, especially when certain areas are placed “under the spotlight” as is the case with these 10 topics.

If you have any questions or concerns regarding this issue, please contact your school attorney or Kelley, Karen, Steve, or Bobby.

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