How does the Fair Labor Standards Act protect American workers?
Although it has seen various amendments since it was enacted in 1938, the Fair Labor Standards Act (FLSA) protects employees in the U.S. by requiring employers to pay the minimum wage, to provide overtime pay for time worked in excess of 40 hours in a workweek, and to maintain employee compensation records. The FLSA also places restrictions on the employment of children. There are many areas that the FLSA does not cover, deferring to specific agreements between employers and employees instead.
What is minimum wage? Is it the same rate across the U.S.?
The FLSA establishes a federal mandatory minimum wage requirement, currently $7.25, that applies to workers employed by:
- Companies with annual gross revenues of at least $500,000, as well as smaller companies engaged in interstate commerce or production of goods for interstate commerce
- Guards, janitors, and maintenance employees in jobs that are closely related and directly essential to interstate activities
- Employees of federal, state or local government agencies, hospitals, schools, and domestic workers
Many states and major cities have their own minimum wage laws with even greater protections for workers, and employers must comply with the FLSA and state and local regulations to avoid liability.
How many hours do I have to work to be considered a full-time employee?
It comes as a surprise to many people that the FLSA does not define full-time employment or part-time employment, leaving that determination to the employer. The FLSA does generally require, however, that employers pay overtime to employees who put in more than 40 hours in a workweek.
Is there a limit to the number of hours I can work in a day or week?
Generally, no. As long as an employee is 16 years of age or older, the FLSA does not restrict the number of hours each day or each week that an employee can work.
Does the law require employers to pay overtime? What is the overtime rate?
Yes. For hours worked in excess of 40 hours per week, the FLSA requires employers to provide overtime pay to a non-exempt employee at a rate of no less than one and one-half times the employee’s regular hourly rate. There are some exceptions for occupations such as law enforcement, firefighters, and health care workers. Certain states have their own overtime pay laws, entitling employees to whichever rate – state or federal – is higher.
Can my employer make me work overtime?
Yes. Under the FLSA and other federal laws, an employer can, in fact, require employees to work more than 40 hours in a workweek, and can even discipline or terminate employees for refusing to do so. The FLSA does not establish the number of hours that an employer can require employees to work in a given day or week, only that the employer provides overtime pay for hours worked beyond 40 hours in a workweek. Many people believe they are entitled to overtime pay if they put in more than eight hours a day, which is incorrect. The FLSA threshold is based on the workweek, not the workday – although some states require overtime pay for hours in excess of eight hours a day.
What does it mean to be exempt from FLSA? What is a non-exempt employee?
Employers are not required to pay exempt employees overtime but can choose to do so at the employers’ discretion. Exempt workers usually fall into three job categories – executive, professional, and administrative – but it is the job duties, not the title alone, which determines exempt status. Common exempt positions include:
- Commissioned salespeople who work in retail establishments
- Computer professionals earning at least $27.63 per hour
- Drivers, driver’s helpers, loaders, and mechanics employed by certain motor carriers
- Farm workers employed on small farms
- Automobile dealership mechanics, parts workers, and salespeople
- Salaried executive, administrative, professional and outside sales employees
- Certain interns, independent contractors, temporary workers, volunteers, and trainees
By contrast, the FLSA entitles non-exempt employees to overtime pay when they work more than 40 hours in a given pay week.
Are salaried workers entitled to overtime pay?
It depends. Most salaried employees do not receive overtime pay, but the FLSA makes an exception based on the salary amount. Currently, if an employee earns less than $23,600 annually or $455 per week, he or she is eligible for overtime, just like a non-exempt hourly worker. Attempts are being made to increase the salary threshold.
Are part-time employees entitled to overtime pay?
The FLSA doesn’t regulate the number of hours that constitute full-time or part-time employment, but does require that employers pay overtime to any nonexempt employee who works more than 40 hours in a workweek.
What is double time and double time-and-a-half?
Employers may pay double time or double time-and-a-half for holiday hours or any hours over a specific amount of overtime hours. Because the FLSA doesn’t require it, it is up to the employer to establish double-time pay practices. California does have a double-time pay law that applies when employees work more than 12 hours in a day or work a seventh consecutive day.
What is a Chinese overtime?
Also referred to as the fluctuating workweek, day rate, or piece-rate pay formula, Chinese overtime allows an employer to pay a fixed salary to an employee, with a “half-time” rate for hours worked in excess of 40 hours in a workweek. To comply with the FLSA, Chinese overtime requires that the employee’s hours vary from week to week, that rate of pay used to calculate the employee’s half-time overtime rate must not fall under the federal minimum wage, and that the employer and employee clearly understand that the salary will cover all hours worked in a workweek, even if only a small amount of time is worked. While this is a lawful pay practice if implemented correctly, mistakes and abuses that deny workers proper compensation are considered FLSA violations.
Am I entitled to extra pay for weekend or night work?
Not necessarily. The FLSA does not require that employers pay additional compensation for weekend or night work. The FLSA’s primary concern is that nonexempt employees receive overtime pay for hours worked beyond 40 hours in a workweek.
Is my employer required to pay me for vacation time, sick days, and holidays?
Not under the FLSA. Because the FLSA does not entitle employees to compensation for time they don’t work, employers are not required to pay workers for vacation days, sick days, or holidays when they are not on the job.
Does FLSA require my employer to pay me for meal breaks and rest periods?
Although the FLSA doesn’t require meal periods and rest breaks, employers commonly provide these respites to employees during the workday, and many states have local laws that provide for such breaks. Rest periods of 20 minutes or less each day are generally considered hours worked and must be paid. If employers opt not to pay non-exempt employees for meal breaks, the workers must be given an unpaid meal break of at least 30 minutes, during which time they must be completely relieved from performing job duties and tasks. The FLSA requires employers with fewer than 50 employees to provide a reasonable break time for nursing mothers to express breast milk.
Are pay stubs required? Does the FLSA define how I get paid or how I can collect the compensation I’m owed?
Consistent with the FLSA’s recordkeeping provisions, employers must maintain accurate records of hours worked and wages paid to employees, but they aren’t required to issue pay stubs. The FLSA does not provide for payment or collection of employee wages
I suspect that I haven’t been paid wages and overtime pay for all the hours I worked. Can I file a lawsuit against my employer for unpaid compensation?
Possibly. Employees who have been denied compensation or whose wages and overtime pay have been unlawfully withheld have the right to recover damages from the employers in court. Many times, whole groups of employees have been similarly wronged by an employer’s illegal pay practices, and a collective action lawsuit provides a cost-effective, more streamlined means to recover unpaid wages and overtime under the FLSA.
How long do I have to file a lawsuit for unpaid wages and overtime?
The FLSA includes a two-year statute of limitations that allows for employees who have been denied wages and overtime pay (extended three years if the employer willfully violated the FLSA). Under this two-year provision, back wages and overtime earned more than two years before a federal lawsuit is filed may not be collectible. As such, time is of the essence, so if you suspect your employer unlawfully withheld compensation, you need to speak with a wage and hour attorney right away!
May employers retaliate against employees who complain about unpaid wages or overtime?
No. The FLSA includes an anti-retaliation provision which protects employees who inquire about, complain (formally or informally), or file lawsuits in connection with unpaid minimum wages or overtime pay. If an employer takes adverse action against a complaining employee, the employee may be entitled to lost wages, liquidated damages, emotional distress damages, attorneys’ fees, and costs.
Does the FLSA cover other employment issues such as discrimination or sexual harassment in the workplace?
No. The FLSA’s reach only extends to compensation and certain pay practices and policies, and therefore doesn’t address other breakdowns in the employer-employee relationship or workplace issues such as discrimination, harassment, or mass layoffs. Although our attorneys focus on wage and hour violations, we have many trusted colleagues who practice in these areas, and we would be happy to introduce you to them for a free consultation.
Can I get fired for claiming overtime pay?
In addition to establishing minimum wage and overtime rules, the Fair Labor Standards Act (FLSA) also prohibits employers from retaliating against any employee raising an FLSA issue. In other words, the FLSA says that an employee should be able to question the legality of their pay without fearing retaliation by the boss.
Specifically, an employee can prove employer retaliation by demonstrating:
- The employee was engaged in a “protected activity.”
- The employee suffered an “adverse employment action” taken by the employer.
- The protected activity was the cause of the adverse employment action.
Courts have made it clear that “protected activity” includes both formal actions, such as filing a lawsuit in court or writing a letter to the employer, and informal actions, such as complaining to the boss at work. An employee should always make it clear that he or she is talking specifically about the FLSA, as only complaints about the FLSA itself will fall within its definition of protected activity.
The classic example of an “adverse employment action” is termination. However, there can be many other forms of adverse actions, such as:
- decrease in pay or benefits
- significant alteration of job duties
- workplace harassment
- hostile work environment
- being assigned demeaning and/or humiliating work tasks
If a victim is successful in proving an FLSA retaliation claim, courts have broad discretion in determining the proper remedy. Depending on jurisdiction, an employee could receive financial compensation for lost wages, mental anguish, and/or punitive damages. If the employee was wrongfully terminated, a court could even order the employer to reinstate the employee in his or her former position.
There are many other nuances to workplace retaliation claims, including numerous exceptions and special rules to the definitions of “protected activity” and “adverse employment actions.”
How long do I have to bring an overtime pay claim against my employer?
Generally, the statute of limitations for an overtime or minimum wage violation under the Fair Labor Standards Act (FLSA) is two years. However, if an employer willfully violates the FLSA, the time limit extends to three years.
For example, if an employee files a lawsuit for unpaid overtime on July 31, 2017, the FLSA’s two-year rule allows that employee to seek damages for all days worked between July 31, 2015 and July 31, 2017. If, however, the employer willfully violated the FLSA, the statute of limitations on collecting back pay would extend to three years, allowing the employee to recover for all days worked dating back to July 31, 2014.
Do I get overtime pay for orientation?
It depends. The Fair Labor Standards Act (FLSA) requires employers to pay workers for hours they are “suffered” or “permitted to work.” The U.S. Department of Labor (DOL) says that attendance at meetings, lectures, training programs, and similar activities do not need to be counted as working time if four criteria are met:
- Attendance is outside normal hours
- Attendance is voluntary
- The event is not job-related
- No other work is concurrently performed
Is an employer required to pay overtime wages to an IT worker?
The Fair Labor Standards Act (FLSA) requires most employees to be paid the federal minimum wage and overtime pay at one and one-half times their regular rate for all hours over 40 worked in a week.
However, the FLSA contains an exemption for certain employees in the computer industry. A worker qualifies for the computer employee exemption if the following requirements are met:
- If salaried, the person makes at least $455 per week. If paid hourly, the person makes at least $27.63 an hour, and
- The person is employed as a computer systems analyst, programmer, software engineer, or similar worker in the computer field whose primary job duties consist of:
- The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
- Design, development, testing, analysis, or documentation of computer systems or programs, including prototypes;
- Design, documentation, testing, creation, or modification of computer programs related to machine operating systems; or
- A combination of the above duties, the performance of which requires the same level of skills.
Importantly, it is an employee’s actual job duties—rather than merely his or her job title—that ultimately determine whether or not the exemption applies.
The exemption does not include employees engaged in the manufacture or repair of computer hardware; nor does it exempt employees whose work might be highly dependent upon computers, but who are not primarily engaged in computer systems analysis and programming.
I’m a Manager/Assistant Manager. Does this mean that I’m exempt from earning overtime?
Not necessarily. You are not automatically exempt simply because the company decides to call you a Manager. Job titles do not determine whether an employee is entitled overtime. Rather, the Fair Labor Standards Act (FLSA) looks to the actual duties of a particular job in determining whether overtime pay may be earned.
This rule makes sense because it prevents employers from attempting to circumvent the FLSA’s overtime requirements by simply granting their employees managerial job titles.
For example, a fast food restaurant employs a staff of cashiers and cooks. The restaurant’s owners cannot avoid paying overtime by simply changing all of their staff’s job titles to Assistant Manager, because what really matters is that the employees are still performing non-exempt job duties of cooking, cleaning, and working the cash register.
Of course, many Managers are exempt from the FLSA’s overtime requirements by means of either the Administrative or Executive exemptions. Both are multi-faceted, fact-specific tests that look toward job duties to determine whether an employer should be required to pay that employee overtime.
The Administrative Exemption is met if: 1) an employee receives a gross pay amount of at least $455 per week; 2) the employee’s primary duty consists of office or non-manual work directly related to management or general business operations; and 3) the employee customarily and regularly exercises discretion and independent judgment on matters of significance.
The Executive Exemption is met if: 1) an employee receives a gross pay amount of at least $455 per week; 2) the employee’s primary duty consists of the management of a business or scientific unit; 3) the employee customarily and regularly directs the work of two or more employees; and 4) the employee has the authority to hire or fire other employees, or is able to offer suggestions and recommendations as to hiring, firing, advancement, promotion, or any other status changes.
What is de minimis time on the job?
In the context of the Fair Labor Standards Act (FLSA), the term “de minimis” or “insubstantial” time on the job comes into play when hourly employees are required to perform work-related tasks beyond their normally scheduled working hours.
For example, a call center employee might be required to clock in by first booting up her computer and accessing the company’s software. If that activity occurs every workday, the employee’s unpaid time could add up quickly. Another example is an employee who must spend time “donning and doffing” (i.e. changing in and out of) uniforms or protective gear at the beginning and end of each shift.
In determining whether an employee should be compensated for such time, the courts will first ask whether the actions are “principal activities” of the workday. 29 C.F.R. § 785.24 defines principal activities as “integral and indispensable” tasks necessary to perform the employee’s job.
In the case of the call center employee, the Department of Labor has stated: “An example of the first principal activity of the day for agents/specialists/representatives working in call centers includes starting the computer to download work instructions, computer applications, and work-related emails.” On the other hand, a call center employee driving to work in the morning would be considered a preliminary activity that falls outside the scope of compensable time.
Even if a worker’s pre- and post-shift duties fall within the “principal activities” definition, an employer still may not be obligated to pay for this time if a court deems it to be de minimis, or so insignificant that it can be ignored by employers for purposes of compensation. In Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), the Supreme Court held that when an employee’s claim “concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded.”
There is no precise amount of time that is considered de minimis. Rather, courts will consider the facts of each case individually, taking into account the regularity of the additional work, total amount of compensable time, and any practical difficulties the employer would encounter in recording the additional time.