Topic Thread

Dept of Labor

  • 1.  Dept of Labor

    Posted 01-13-2018 09:26 PM
    Has anyone heard of an HVAC industry wide audit being conducted by the DOL?

    Sent from my iPhone


  • 2.  RE: Dept of Labor

    Posted 01-15-2018 01:09 PM
    Maribeth,

    ACCA staff has not heard anything about this from the Department of Labor.

    FYI: The Secretary of Labor is invited to speak at ACCA's Conference, happening Feb. 12-14. ACCA staff is talking to his staff and we'll ask if they know about this. If they don't know anything, then we'll see if this is something he mentions in his speech.

    Thanks for bringing this to our attention!

    Sincerely,
    Todd Washam

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    Todd Washam
    Director of Industry Relations
    ACCA
    703-824-8864
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  • 3.  RE: Dept of Labor

    Posted 01-16-2018 09:47 AM
    Maribeth, not sure about entire industry.

    But, unfortunately, we had a related event in 2017. The WHD (wage & hour division) of DOL investigated us. As we understood, there are 2 reasons for an investigation (complaint or random selection). Since neither is required for disclosure by DOL, we don't know why/how we were picked.

    As you know, in our industry; it's common practice for employees to be assigned to the 1st job location or meet at office to begin work each day. The rub comes from "when does work time begin". Again, as we understood, most companies begin work time at initial job location. But, according to WHD-DOL, this could be incorrect.

    In our case, the department collected time records for a period of 104 weeks and interviewed past/present employees about our practices. In the end, the department/investigator determined that there was 5 minutes each day that was not recorded on employee time sheet. We argued that employees' complete their own time sheets for our approval. So, at most, this was an honest error. Regardless, the department sought to win added compensation. Of course, if the added 5 minutes per day resulted in OT for the pay period; then, the ADDED time was subject to OT. End result, huge back-wages and penalty (liquidated damages) with NO recourse to collect from customers. Basically, a lose/lose for employer. Also, the employee who likes to show up early/on time and "prep" for the day....It's not worth it unless the employer is very diligent in recording ALL time for PR purposes.

    The WHD-DOL (as I understand) sees our industry at risk for not recording employee time/PR correctly. So, to protect  industry employees; the WHD-DOL is tasked with investigation and enforcement.

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    Weber Player
    President
    Dense Mechanical
    Enid OK
    (580) 234-7842
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  • 4.  RE: Dept of Labor

    Posted 01-26-2018 11:02 AM
    Good Morning All, and Happy Friday as Well!

    I took note of this recent discussion, but before I made a comment, I sent the thread to ACCA's outside LegalTools counsel Brooke Duncan, III, at the Adams and Reese law firm in New Orleans, LA. Brooke has been a long-time adviser to ACCA and is an expert in the area of labor law, and has given great guidance to our contractors over the years.

    Here's what Brooke had to say:

    "Question: It's common in the HVAC industry for employees to report to the office each day and receive their work assignments for the day but in many companies, their pay doesn't begin until they actually reach the first job site. We were recently audited by the U.S. Department of Labor which told us this practice may be incorrect. We don't know why we were picked for an audit-they told us they don't have to disclose the reason. But the department collected voluminous time records for a two-year period , they interviewed numerous past and present employees, and determined we owed five minutes pay for each employee on each day. We argued, unsuccessfully, that the employees complete their own time sheets. In the end, we had to pay a lot in backpay and penalties.

    Answer: It's no wonder the Fair Labor Standards Act is such a headache for employers. U.S. Department of Labor audits can be random but in most cases, they result from an employee complaint-though as noted above, the department doesn't have to say. And investigations can look back two, even three, years, with penalties applied if a violation is found. The legal issue is all about when the workday begins. The deceptively simple answer is that the workday begins when an employee commences any activity that benefits the employer. This means, for example, that when employees report to the office or the shop to receive their assignments for the day, that's when their workday begins-because receiving work orders is activity that benefits the employer.

    And while this is time that may not be able to billed directly to the customer, the Department of Labor doesn't care-it's time that is spent on behalf of the employer.

    This also means that the go-getter worker who likes to come in early, check his equipment, make sure he has all the parts needed for the day, must also be paid for that time. On the other hand, the early bird who merely comes in to drink coffee and beat the traffic need not be paid for that time.

    Commuting time is not required to be paid so even if a tech drives a take-home vehicle, time spent driving the vehicle to the office is not required to be paid. Similarly, driving from home to the first job site is not compensable, assuming the drive is reasonably comparable to a normal commute and the tech doesn't have to stop for parts or tools on the way.

    Bear in mind that this assumes the tech is not "working" while driving, e.g., making cell phone calls to receive instructions or converse with a customer. (Of course, we don't advocate actually using a cell phone while driving!) Likewise, if when the tech finishes at a job site, he or she drives straight home, the time spent driving is commuting and not required to be paid. But, as with the morning drive, if, for example, the tech stops by the shop to drop off paperwork , the time is compensable.

    How about time waiting to go to work-does that count toward the 40 hours? If a tech arrives at a job, ready to work, but for some reason beyond the tech's control, he must wait to start, the time spent waiting is compensable (assuming of course the employer does not instead instruct the employee to go home).

    While employees may be responsible for completing their time sheets, employers are responsible for seeing that employees receive at least minimum wage for all hours worked. Employers are responsible for ensuring employees record all their work hours and employees cannot waive their right to minimum wage or overtime.

    DISCLAIMER
    As a reminder, this response is intended for general informational purposes only and should not be construed as legal advice or a legal opinion. For help with particular legal needs, members are invited to consult with Brooke Duncan III of Adams and Reese LLP. Mr. Duncan can be reached at 504-585-0220 or by email at brooke.duncan@arlaw.com."

    I want to thank all of you again for your ongoing conversations and your membership in ACCA. This kind of information exchange is great for everyone involved!

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    Hilary Atkins
    General Counsel & Sr. VP, Finance and Administration
    ACCA
    Arlington VA
    (703) 575-4477
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