Fair Labor Standards Act (FLSA) Resource Center
FLSA: The Basics
The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and in Federal, State, and local governments. The FLSA is enforced by the Wage and Hour Division of the U.S. Department of Labor.
Who is NOT protected by the FLSA?
In order for the FLSA to apply, there must be an employment relationship between the “employer” and the “employee.” Almost all workers are protected by the FLSA, but the following types of jobs are exempt from all FLSA coverage:
- Employees of certain seasonal amusement or recreational establishments
- Employees of certain small newspapers and switchboard operators of small telephone companies
- Seamen employed on foreign vessels
- Employees engaged in fishing operations
- Employees engaged in newspaper delivery
- Farm workers employed on small farms (i.e., those that used less than 500 “man days” of farm labor in any calendar quarter of the preceding calendar year)
- Casual babysitters and persons employed as companions to the elderly or infirm
What is the federal minimum wage?
Established by the FLSA on July 24th, 2009, the federal minimum wage is $7.25/ hour. Many states also have minimum wage laws. In states where an employee is subject to both the state and federal minimum wage laws, an employee is entitled to the higher wage rate.
Exceptions to minimum wage laws apply under specific circumstances to:
- Tipped employees
- Full-time students
- Workers with disabilities
An employer may pay a tipped employee no less than $2.13/hour (see state minimums) in direct wages if that amount plus the tips received equal at least the federal minimum wage, and if the employee retains all tips and the employee customarily and regularly receives more than $30 a month in tips. If an employee’s tips combined with the employer’s direct wages of at least $2.13 an hour do not equal the federal minimum hourly wage, the employer must make up the difference.
Are My Rights Being Violated?
Many employees who are being taken advantage of by their employer may not be aware that any violation is taking place. If you answer ‘yes’ to any of the following questions, you may wish to explore your legal options or report your experience to the Wage and Hour Division of the Department of Labor.
Are you not being paid at least minimum wage?
Are you a non-exempt employee not being paid time and a half for hours worked over 40? See ‘Understanding Exemptions’ for more info
Are you required to share tips with management?
Are you required to work after you clock out?
- Attend pre-shift meetings
- Putting on/taking off protective gear
- Setting up and readying a workstation
- Time spent walking to and from the workstation
Common FLSA Violations by Industry
- Hourly workers doing non-tipped work (i.e. food prep, cleaning) but being paid as a tipped employee under a lower hourly rate
- Deductions made from wages for items such as cash shortages, required uniforms or customer walk-outs
- Invalid tip pools: when tips are shared among employees who do non-tipped work (cooks, managers, dishwashers, janitors)
- Tax code claims: when a portion of an employee’s paycheck is paid in cash and are therefore denied overtime (fewer hours on the books). Restaurants may do this so they can report lower earnings to IRS and employees don’t have to pay that taxable income
- Managers or assistant managers who primarily perform non-managerial duties and are denied overtime (see Understanding Overtime Exemptions)
- Food credit: the employer may take credit for food which is provided at cost. This typically is an hourly deduction from an employee’s pay. However, the employer cannot take credit for discounts given on food (menu) prices
- Failure to pay for on-call time
- Misclassification: when a worker is classified as a learned professional (exempting them from overtime) when in fact they are not
- Working off-the-clock: an employee may punch out after their shift, but then see that extra assistance is needed in an emergency situation, for example
- Donning/doffing: employees must be properly compensated for time before and after a worker’s scheduled shift (including time donning and doffing uniforms, protective gear or equipment) and for time attending staff meetings or training sessions
- Rest periods: Most healthcare organizations permit short rest period (typically under 20 minutes) to promote workplace efficiency. These rest periods should nearly always be counted as hours worked
- Meals: Bona fide meal periods generally should not be compensated as work time as long as the employee is completely relieved from duty
Call center workers
- Failure to pay overtime
- Off-the-clock work: being expected to perform functions that are considered vital to their job duties before clocking in
Truckers/tow truck drivers: Failure to pay overtime to drivers who do not cross state lines
Employees of temporary staffing companies: Failure to pay overtime
Recruiters: Failure to pay overtime
Exotic dancers: Failure to pay minimum wage
Home health care workers: Failure to pay overtime / break
Nursing home employees: Failure to pay overtime / break
Janitorial services: Failure to pay overtime / break
Interns: Failure to pay minimum wage / overtime
The FLSA is made up of a complex set of rules, and situations can be highly individualized. If you have any suspicion that your employer is denying you privileges which you are entitled to under the FLSA, call 1-800-LAW-FIRM. Our knowledgeable FLSA team can answer your questions.
Understanding Overtime Exemptions
Exempt vs. Non-Exempt
Certain jobs are referred to as either “exempt” or “non-exempt.” Jobs that are referred to as “exempt,” such as managerial and assistant managerial roles, entail that the employee does not qualify for overtime protections.
When the Job Title Doesn’t Match the Responsibilities
What is important to keep in mind is that the right to overtime pay is determined by the duties an individual performs on the job, NOT the job title. For example, a manager or assistant manager who spends most of their time doing non-management work (i.e. cooking, cleaning, expediting, refilling water glasses, etc.) should not be exempt from receiving overtime pay.
For the executive exemption to apply:
- The employee’s primary duty must be management
- The employee must regularly direct the work of two or more other employees
- The employee must have the authority to hire and fire other employees
For the administrative exemption to apply:
- The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations
- The primary duty must include the exercise of discretion and independent judgement with respect to matters of significance
Am I Eligible to Collect Overtime?
- Paid hourly?
- A salaried employee making less than $455/week?
- A manager or assistant manager who primarily performs non-management work?
If you answered ‘yes’ to any of the questions above, you most likely qualify for overtime protections. If your employer is incorrectly classifying you as an exempt employee, you may wish to explore your legal options by calling 1-800-LAW-FIRM for a free, confidential consultation.
Statute of Limitations
The statute of limitations on overtime cases is 2 years, or 3 years if intent can be proved.
Keeping a detailed log is a crucial action to ensure you are being properly compensated for your work. The following resources, made available by the U.S. Department of Labor, are tools you can use to keep track of hours worked and duties performed.
Tax Status: 1099 vs. W-2
Employers across industries who are trying to cut back on full-time staffers may hire independent contractors to do the same work – without the expensive benefits. There are significant differences between a 1099 and W-2 employee. One of the main difference is how taxes are collected: W-2 employees have taxes deducted from their paychecks, whereas 1099 workers are responsible for calculating and submitting their taxes on a quarterly basis. Independent contractors, or 1099 workers, generally have more freedom and flexibility with their duties and hours, but in exchange they are not entitled to overtime pay or benefits.
As an independent contractor, you treat your relationship with the company for which you are working like a client more than an employer. In short, if you do your job well and finish it on time, the company doesn’t have much control over your process. If you’re an independent contractor you should be able to…
- Set your own schedule
- Use your own personal method for finishing assignments
- Accept or reject tasks on a case-by-case basis
- Supply your own tools
- Have multiple clients
Are You Being Misclassified?
Although you are not entitled to benefits, as an independent contractor you should have flexibility over your work and schedule. If you suspect you’re being misclassified as a 1099 worker, first ask yourself the following questions:
- Do you have assigned hours or a set schedule determined by your employer?
- Are you expected to follow a certain method or process which may have been established in training?
- Are you provided the tools and materials necessary to do your work?
- Do you only have one employer?
If you answered ‘yes’ to the questions listed above, you may be misclassified as a 1099 worker. If this is the case, you may wish to explain to your employer or HR department that you would like to receive W-2 status so you can take advantage of benefits as well as the tools and infrastructure necessary to do your job. If you are unsuccessful in doing so, you may wish to explore your legal options by calling 1-800-LAW-FIRM for a free consultation.
How 1-800-LAW-FIRM Can Help
Although mostly all workers employed in the United States are protected by the FLSA, many are not able to recognize when a violation is taking place. If you suspect that your employer is denying you overtime or other rights which you are entitled to under the FLSA, please get in touch by calling 1-800-529-3476. Our knowledgeable FLSA team can help you navigate the complexities of the FLSA as it applies to your specific situation.
Last updated 8/3/2017