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Record Keeping and Notices
Are pay stubs required?
The Fair Labor Standards Act (FLSA) does require that employers
keep accurate records of hours worked and wages paid to employees.
However, the FLSA does not require an employer to provide employees
pay stubs.
Records To Be Kept By Employers.
Highlights: The FLSA sets minimum wage, overtime pay, recordkeeping
and child labor standards for employment subject to its provisions.
Unless exempt, covered employees must be paid at least the minimum
wage and not less than one and one-half times their regular
rates of pay for overtime hours worked.
Posting: Employers must display an official poster outlining
the provisions of the Act, available at no cost from local offices
of the Wage and Hour Division and toll-free, by calling 1-866-4USWage
(1-866-487-9243). This poster is also available electronically
for downloading and printing at http://www.dol.gov/osbp/sbrefa/poster/main.htm
What Records Are Required: Every covered employer must keep
certain records for each non-exempt worker. The Act requires
no particular form for the records, but does require that the
records include certain identifying information about the employee
and data about the hours worked and the wages earned. The law
requires this information to be accurate. The following is a
listing of the basic records that an employer must maintain:
1. Employee's full name and social security number.
2. Address, including zip code.
3. Birth date, if younger than 19.
4. Sex and occupation.
5. Time and day of week when employee's workweek begins.
6. Hours worked each day.
7. Total hours worked each workweek.
8. Basis on which employee's wages are paid (e.g., "$6
an hour", "$220 a week", "piecework")
9. Regular hourly pay rate.
10. Total daily or weekly straight-time earnings.
11. Total overtime earnings for the workweek.
12. All additions to or deductions from the employee's wages.
13. Total wages paid each pay period.
14. Date of payment and the pay period covered by the payment.
What About Timekeeping?: Employers may use any timekeeping method
they choose. For example, they may use a time clock, have a
timekeeper keep track of employee's work hours, or tell their
workers to write their own times on the records. Any timekeeping
plan is acceptable as long as it is complete and accurate.
What notices must be given before an employee is terminated
or laid off?
The Fair Labor Standards Act (FLSA) has no requirement for notice
to an employee prior to termination or lay-off. In some situations,
the WARN Act provides for notice to workers prior to lay-off.
Some states may have requirements for employee notification
prior to termination or lay-off.
The Worker Adjustment and Retraining Notification Act (WARN)
was enacted on August 4, 1988 and became effective on February
4, 1989.
General Provisions
WARN offers protection to workers, their families and communities
by requiring employers to provide notice 60 days in advance
of covered plant closings and covered mass layoffs. This notice
must be provided to either affected workers or their representatives
(e.g., a labor union); to the State dislocated worker unit;
and to the appropriate unit of local government.
Employer Coverage
In general, employers are covered by WARN if they have 100 or
more employees, not counting employees who have worked less
than 6 months in the last 12 months and not counting employees
who work an average of less than 20 hours a week. Private, for-profit
employers and private, nonprofit employers are covered, as are
public and quasi-public entities which operate in a commercial
context and are separately organized from the regular government.
Regular Federal, State, and local government entities which
provide public services are not covered.
Employee Coverage
Employees entitled to notice under WARN include hourly and salaried
workers, as well as managerial and supervisory employees. Business
partners are not entitled to notice.
What Triggers Notice
Plant Closing: A covered employer must give notice if an employment
site (or one or more facilities or operating units within an
employment site) will be shut down, and the shutdown will result
in an employment loss (as defined later) for 50 or more employees
during any 30-day period. This does not count employees who
have worked less than 6 months in the last 12 months or employees
who work an average of less than 20 hours a week for that employer.
These latter groups, however, are entitled to notice (discussed
later).
Mass Layoff: A covered employer must give notice if there is
to be a mass layoff which does not result from a plant closing,
but which will result in an employment loss at the employment
site during any 30-day period for 500 or more employees, or
for 50-499 employees if they make up at least 33% of the employer's
active workforce. Again, this does not count employees who have
worked less than 6 months in the last 12 months or employees
who work an average of less than 20 hours a week for that employer.
These latter groups, however, are entitled to notice (discussed
later).
An employer also must give notice if the number of employment
losses which occur during a 30-day period fails to meet the
threshold requirements of a plant closing or mass layoff, but
the number of employment losses for 2 or more groups of workers,
each of which is less than the minimum number needed to trigger
notice, reaches the threshold level, during any 90-day period,
of either a plant closing or mass layoff. Job losses within
any 90-day period will count together toward WARN threshold
levels, unless the employer demonstrates that the employment
losses during the 90-day period are the result of separate and
distinct actions and causes.
Sale of Businesses
In a situation involving the sale of part or all of a business,
the following requirements apply. (1) In each situation, there
is always an employer responsible for giving notice. (2) If
the sale by a covered employer results in a covered plant closing
or mass layoff, the required parties (discussed later) must
receive at least 60 days notice. (3) The seller is responsible
for providing notice of any covered plant closing or mass layoff
which occurs up to and including the date/time of the sale.
(4) The buyer is responsible for providing notice of any covered
plant closing or mass layoff which occurs after the date/time
of the sale. (5) No notice is required if the sale does not
result in a covered plant closing or mass layoff. (6) Employees
of the seller (other than employees who have worked less than
6 months in the last 12 months or employees who work an average
of less than 20 hours a week) on the date/time of the sale become,
for purposes of WARN, employees of the buyer immediately following
the sale. This provision preserves the notice rights of the
employees of a business that has been sold.
Who must get a W-2 form and how does an employee obtain one?
The Department of Labor does not have jurisdiction over taxing
employee's wages or providing W-2 forms to employees. The Internal
Revenue Service (IRS) has authority over these issues.
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