Getting Punished for Trying to do Good: The Lesson in the Quik Trip Fine

QuikTrip, a Tulsa, Oklahoma based convenience store chain, has agreed to pay out $750,000 in overtime payments that the U.S. DOL said were due employees because of a violation of the Fair Labor Standards Act. By just looking at the headline you might think this is the "standard" case of a company working employees off the clock or not counting time they worked. Well if you thought that you would be very wrong. This case has to do with a company trying to do good things for their employees and rewarding them for their good work.

QuikTrip has a bonus system based upon a secret shopper program. Employees are rewarded for extra good work based upon their ratings in the program. What an excellent thing to do! However, QuikTrip got caught in a making a mistake that many companies probably don't even realize they could make too. In fact when I talk about this in the SHRM prep classes I teach most people are agast. The mistake that QuikTrip made was in giving nonexempt employees non-discretionary bonuses! Because if you give nonexempt employees non-discretionary bonuses you have to use that in your overtime calculation for the period of time that was covered by the bonus.

This 2003 article, entitled Intersection of Bonuses and FLSA - Is More Overtime Pay Due?, written by Jason Reisman of the law firm Obermayer Rebman Maxwell & Hippel, explains that "The FLSA requires that non-discretionary bonuses - those promised to employees - be allocated over the time period to which they apply and included in calculating the overtime pay due to non-exempt employees. Such a bonus, viewed under the FLSA as additional compensation for employees' work, requires additional overtime pay beyond the employees' regular overtime pay rate, which is one and one-half times their regular hourly rate of pay. Non-discretionary bonuses that are not paid on a weekly basis require allocation to each workweek covered by the bonus before recalculating the overtime compensation due. Generally, non-discretionary bonuses include attendance bonuses, individual or group production bonuses, bonuses for quality and accuracy of work, and retention bonuses." (For further information click on the link above.)

Discretionary bonuses do not require such payment, but may have consequences beyond just the simple payment of the bonus. To avoid problems Reisman suggests either of the following in constructing a bonus program for nonexempt employees.

1. True discretion - both the language of the bonus plan and the actual administration of the plan must demonstrate "discretion."
   


2. A percentage of total earnings (both straight time and overtime) payout. As to the latter option, instead of a lump sum payment, the FLSA authorizes employers to pay a "percentage bonus" because it automatically includes an allowance for overtime pay as well as for straight time pay. The percentage bonus tool can be a silver bullet to effect compliance with the FLSA overtime provisions, while leaving intact the non-discretionary format of the bonus. However, a percentage bonus still requires advance planning, as it may have associated side effects, such as causing the employer to make different bonus payouts for similarly situated employees who earn different amounts of money, by virtue of different pay rates or working different hours.
   

Or you just don't pay ANY bonuses to nonexempt employees! Overtime problem solved! But wait that certainly does not get you in the direction you want to go in with having committed employees whom you want to reward for helping the company be successful. So careful design and understanding and guidance needs to go into each bonus program you design. Realize the cost of the bonus is going to be greater than the actual bonus designation. And if you don't have someone on your HR staff qualified to do this then get a good compensation consultant to help you. It will be a whole lot cheaper than paying $750,000 in back pay. QuikTrip got burned trying to do something good you need to avoid the same happening to you.

I would like for some of my compensation buddies to weigh in on this and perhaps offer some additional advice. Ann? Phil? Folks at Compensation Cafe?

Clocking Out: Shutting Off The Brain

"The proliferation of phones and PDAs also brings with it wage and hour liability, Weitz says. As HR managers well know, the federal Fair Labor Standards Act requires employers to pay nonexempt employees for all hours worked. Therefore, if nonexempt employees make employment-related cell phone calls from home during off-duty hours, that time is probably "hours worked" according to the FLSA. And that's true even if they say, "Oh, I don't mind making a few calls."

This quote from the HRAdvisor of BLR to me to thinking. Our laws almost require us to forget about non-exempt employees once they walk out the door. Because if you contact them by phone or email then you have to pay for the time and track the time as well. If you don't you get penalized by the Department of Labor, under a violation of the FLSA. And forget about having them think about work and doing something about it. In fact you have to discourage that. Certainly not a very good model for employee engagement. You work at getting people excited about their jobs and then you have to have them "shut it off" when they walk out the door.

Maybe in the days where most people worked on "things" and engaged in manual work that was easy to do. But in today's economy where many employees work with intellectual "things" it seems to me to be harder to shut off. How do you get a non-exempt employee to shut off their brain when they get home? Well, I guess you have them watch American Idol...

What do you think?