U.S. Department of Labor investigation of Landmark Education in Dallas, Texas (2006)



[NOTE: Information in brackets pertains to information withheld from public by United States Department of Labor, due to exemptions to Freedom of Information Act.] 

WHISARD Compliance Action Report
June 26, 2006

WHISARD Compliance Action Report U.S. Department of Labor Employment Standards Administration Wage and Hour Division

Case ID: 1371610 Local Filing Number: 2004-167-04517 Lead Investigator: [Exemption 7c to Freedom of Information Act: Names, address, telephone numbers] Registration Date: 07/30/2004 Assignment Date: 09/15/2004 Originating District: Dallas TX District Office Investigating District: Dallas TX District Office

Employer Information Trade Name: Landmark Education Address: 4901 Spring Valley Rd, Dallas, TX 75244 Legal Name: Landmark Education Inc. EIN: : [Exemption 7c to Freedom of Information Act, Names, address, telephone numbers] County: Dallas NAIC Code: 923110 No. Of Employees: 3

Investigation Information Period Investigated From: 02/01/2003 To: 02/01/2005 Compliance Status: [Exemption 5 to Freedom of Information Act: Internal forms and memoranda]

Recommended Action: [Exemption 5 to Freedom of Information Act: Internal forms and memoranda]

CL Violation / Compliance Status No Violation found for this act / Compliance (no violations found)

FLSA Violation / Compliance Status

Failure to pay proper overtime / Agree to Comply Failure to keep accurate records / Refuse to Comply

[Exemption 5 to Freedom of Information Act: Internal forms and memoranda]

Conclusions & Recommendations

[Exemption 5 to Freedom of Information Act: Internal forms and memoranda]

Date: 7-7-06

Narrative
'Landmark Education, Inc., dba  Landmark Education 4901 Spring Valley Road Dallas, TX 75244 972-385-1800

Main Office:

Landmark Education 353 Sacramento Street, Ste 200 San Francisco, CA 94111 (415) 616-2402 EIN: [Exemption 7c to Freedom of Information Act: Names, address, telephone numbers]

EIN: [Exemption 7c to Freedom of Information Act: Names, address, telephone numbers]

Case Number: 2004-167-04517

History

There is one prior investigation in 1995 for failure to pay minimum wage (Case ID #77851)/Case ID #1378023 done by the MODO that found OT violations for non-exempt salaried employees and backwages were paid.

Coverage

Landmark Education, Inc. dba Landmark Education is an education program to motivate people in their careers/personal lives. The firm has training centers throughout the United States.

The firm is a corporation that has been in business since 1991/is headquartered at 353 Sacramento Street, Ste 200, San Francisco CA 94111. The Chairman, is Art Schreiber and CEO, Harry Rosenberg, the secretary and treasurer seats are vacant.

The annual volume of sales for the past two years is as follows:

2003:  [Exemption 4 to Freedom of Information Act: Financial matters]

2004: [Exemption 4 to Freedom of Information Act: Financial matters]

Employees regularly use credit card machines/fax machine to conduct daily transactions. The firm meets the requirements of a covered enterprise as defined by the FLSA Section 3(s)(1) and is subject to all its provisions [Exemption 5 to Freedom of Information Act: Internal forms and memoranda]

Exemptions: 

541.1/2, [Exemption 7c to Freedom of Information Act: Names, address, telephone numbers] Site Manager, paid a salary of $34,000 annually, does meet the duties test

[Exemption 5 to Freedom of Information Act: Internal forms and memoranda]

541.1/2,, [Exemption 7c to Freedom of Information Act: Names, address, telephone numbers] Seminar Manager, paid a salary of $29,000 annually, does not meet the duties test

[Exemption 5 to Freedom of Information Act: Internal forms and memoranda]

Status of Compliance

The period of investigation was originally 10/24/2002 through 10/24/2004 and was transferred to the MODO/concluded. Reopened by the Dallas District Office 02/01/2003 – 02/01/2005, after the MODO’s investigation, which did not address the volunteer issue and the non-exempt salaried employee in Dallas

Section 6: Minimum wage violation found. Volunteers (Assistants) are not paid any wages for hours worked while performing the major duties of the firm. The assistants set up rooms, call registrants, collect fees, keep stats of classroom data/participants, file, they also are answering phones, training and leading seminars

The assistants hours are delegated by an employee of the firm, the work is directed and managed by the site manager, the duties performed are vital to the employer’s business. The assistants are not given credit for the hours worked which vary from 10 per week to 60 and up. The assistants are keeping records of attendees, stats on classroom attendance, assisting the instructor with the classes, and also an integral part of the seminars. The employer could not conduct the seminars at the level it has been doing without the enormous amount of assistants (20-40) per seminar. The assistants perform primary functions of the employer such as finance conversations with potential attendees, purchasing, and facility management.

A heavy emphasis is put on volunteering at the initial Landmark Forum attended by newcomers. Attendees are influenced to assist (volunteer) at the classes and told they can gain more knowledge without paying any money to attend seminars that they volunteer at [Exemption 5 to Freedom of Information Act: Internal forms and memoranda]

By volunteering at these seminars and in the business office the assistants are convinced that they are acquiring skills and knowledge required to improve their social and mental skills that they can use in their full-time employment and personal lives. The assistants displace regular employees that would have to be hired. The employer could not operate with the 2-3 full-time employees per site.

Section 7: An overtime violation resulting from the firm not paying the additional half time to non-exempt salaried employees [Exemption 5 to Freedom of Information Act: Internal forms and memoranda]

The firm did agree to comply and pay backwages throughout the United States via the MODO’s investigation [Exemption 5 to Freedom of Information Act: Internal forms and memoranda]

but did not include the non-exempt salaried employee in Dallas. The firm has agreed to pay the backwages to the Dallas employee, but will not comply with the overtime violation found for the assistants.

Section 11: A recordkeeping violation resulted from the firm not keeping a record of hours for non-exempt salaried employees, and for assistants that are actually employees.

Section 12: No violations.

Complaint Information

The investigation was initiated by [Exemption 7c to Freedom of Information Act: Names, address, telephone numbers] who alleged that employees are not paid overtime correctly/volunteer employees are not paid at all for hours worked. The allegation was substantiated.

Backwages 

Computed backwages in the amount of $6,877 due to the non-exempt salaried employee [Exemption 7c to Freedom of Information Act: Names, address, telephone numbers] that was not included in the MODO’s findings (an average of 52 hours per week was used) the employer agreed to pay/comply in the future. No backwages computed for the assistants [Exemption 5 to Freedom of Information Act: Internal forms and memoranda]

Disposition 

No final conference held. Via MODO instruction case is to be transferred to the District Director of the corporate office.

[Exemption 5 to Freedom of Information Act: Internal forms and memoranda]

The firm denies that the assistants/volunteers are employees. Interviews reveal that the employees are taking payments, registering clients, billing, training, recruiting, setting up locations, cleaning, and other duties that would have to be performed by staff if the assistants did not perform them [Exemption 5 to Freedom of Information Act: Internal forms and memoranda]

A second level was held with Art Schreiber, Landmark, Robert Tollen, attorney, and Glynda Smith, Assistant District Director, November 2005, the parties presented their position to Ms. Smith where the assistants were still held as employees and the firm did not agree.

[Exemption 5 to Freedom of Information Act: Internal forms and memoranda]

WHI Fort’e informed Mr. Tollen via phone on June 26, 2006 that the assistants were considered employees and need to be paid MW/OT, that records needed to be kept of the employees/non exempt salaried employees, and that CMP’s would be assessed in any future investigations. The firm agreed to pay/comply with the non-exempt salaried employee, but did not agree on the assistants. Mr. Tollen stated he understood the findings. The meeting was adjourned.

Recommendation

[Exemption 5 to Freedom of Information Act: Internal forms and memoranda]

[Exemption 7c to Freedom of Information Act: Names, address, telephone numbers]