Attorneys' Fees.

Successful FLSA Plaintiffs are entitled to an additional award for "reasonable attorneys' fees" (plus reimbursement for out-of-pocket expenses incurred in litigating the lawsuit).

Compensatory Time.

Comp. time in lieu of cash for FLSA overtime is not generally permitted in the private sector. Under certain circumstances a public employer may pay overtime with "comp. time" instead of cash. There must be an "agreement" to compensate overtime with comp. time instead of cash. Overtime paid with comp. time must be paid at the overtime rate (time and one-half). There is some authority that employees may have a choice whether to accept comp. time instead of cash for overtime, but this question is not definitively resolved. Accrued comp. time belongs to the employee, who may take it off when s/he wishes except if the time off would "unduly disrupt" the employer's business. What consitutes an "undue disruption" is not crystal clear, but available authority strongly supports the view that it means "emergency" situations and that simple manpower allocation or budget needs are insufficient. It is not clear what the remedy is for an employer improperly requiring an employee to "burn" comp. time. There is some authority that an employer may require an employee to "use" a particular type of leave; i.e., that an employee seeking a day off may be required to use comp. time before vacation time, or vice versa. Comp. time in lieu of cash for overtime may be accrued up to 240 hours (480 hours for police). Additional overtime must be paid in cash. Accrued comp. time for overtime must be paid in cash on termination of employment, at current pay rates. "Comp. time" is different from "schedule adjustments," which are permitted (under the FLSA) to avoid overtime but only within a particular work period.

Control the Work.

It is the employer's responsibility (and privilege) to control the work of its employees. If an employer does not wish work to be performed it must prohibit it. An employer may not sit back and accept the benefits of work performed without appropriately compensating employees.

Duties Test.

The "duties test" is one way the FLSA distinguishes exempt from nonexempt employees. (See, Salary Basis Test.) Some high-level, "white collar" employees are FLSA exempt, if their duties are "executive," "administrative," or "professional" (and if they are paid "on a salary basis"). Executives are high-level employees whose primary job duties are to make discretionary, organization-wide policy decisions. Administrators are high-level employees whose primary job duties are to provide organization-wide support services involving discretion and policy-making. Professionals are high-level employees who are doctors, lawyers, or in other highly educated occupations. Job titles are not determinative. Actual job duties are. Most employees who are engaged in the "production" aspects of their businesses or agencies (i.e., who are involved in making or providing goods or services) are not exempt executives, administrators, or professionals. For example, operational ("street level") police officers are often nonexempt employees (regardless of rank), since preventing crime and apprehending criminals is the "product" of law enforcement. (See, "Exempt and Nonexempt Employees.")

"Early to Work" -- "Late after Work."

Employees covered under the FLSA must be paid appropriately for time spent working before and after the start and end times of their scheduled shifts, to the extent that this was "suffered or permitted" by the employer

Fair Labor Standards Act.

Federal labor law of general and nationwide application, including Overtime, Minimum Wage, Equal Pay Act. Located at 29 USC§§201 et seq

Hours Worked.

FLSA wages are determined by the number of hours an employee actually works. "Hours not worked" are not governed by the FLSA, even if they are considered "work time" or "paid time" by the employer. Thus, holidays, sick days, or other days off do not count as FLSA hours worked.

Joint Employment -- Dual Employment.

"Joint employment" refers to employees working the same job for two "different" employers. All hours must generally be aggregated, and each joint employer is equally responsible for wages, unless they are truly "separate and independent." "Dual employment" refers to employees performing separate jobs for the same employer. All hours must generally be aggregated and overtime paid per normal rules. The rate for overtime is "blended rate" (based on wages for each job) unless there is a special agreement (in which case the OT rate is set at "bona fide" regular rate for type of work performed).

Liquidated Damages.

Successful FLSA plaintiffs are usually entitled to recover double the amount of improperly unpaid back wages. This is called "liquidated damages" and is essentially in lieu of interest. Liquidated damages are mandatory unless the employer proves that it (a) made good faith and reasonable efforts to find out how the FLSA governed its employees, and also (b) had an objectively reasonable basis to believe that its wage practices were legal under the FLSA.

Meal Periods.

Meal periods count as compensable hours worked unless they are "uninterrupted."

"Off-the-Clock Work."

Job-related activities performed by employees outside of normal working hours, such as "homework," equipment maintenance, "staying late" (without "putting in" for overtime), etc. Many FLSA cases involve employers not capturing and compensating off-the-clock work by employees.

On Call.

"On call" or "standby" time will count as hours worked only if the on-call status creates a substantial interference on the employee's ability to use the time for personal purposes.

Paydays.

FLSA wages must be paid "when due," which usually means at the next regularly scheduled payday. "Late payment" of wages is the equivalent of "nonpayment" of wages for most FLSA purposes. The FLSA does not prescribe how frequently wages must be paid. "Pay periods" are different from "work weeks" or "work periods."

Regular Rate.

FLSA overtime is calculated at time and one- half of an employee's "regular rate." Subject to some special rules, the regular rate is the total non-overtime compensation received by an employee divided by the number of non-overtime hours these wages are intended to compensate. Most wage "augments" must be included in the regular rate, such as longevity pay or shift differentials.

Retaliation and Discrimination.

The FLSA prohibits retaliation or discrimination against employees for asserting rights under the FLSA. The anti-discrimination and anti- retaliation provisions have teeth, and are interpreted liberally in favor of employees.

Salary Basis Test.

The "salary basis test" is one way the FLSA distinguishes exempt from nonexempt employees. (See also, Duties Test.) The salary basis test has been used to obtain overtime compensation for employees who would might be considered exempt because of their "white collar" job duties. To be exempt, an employee must be paid "on a salary basis." This means, (a) s/he must receive a guaranteed minimum amount in every paycheck no matter how many hours were worked, and (b) the employee's pay may not be "subject to" reduction based on quality or quantity of work performed. Employees who are subject to suspensions without pay or layoffs are not paid on a salary basis, and are therefore nonexempt, no matter what their job duties are. For example, police officers who are subject to suspension without pay for disciplinary vilations of department rules and regulations are usually nonexempt, regardless of rank. (See "Exempt and Nonexempt Employees.")

The "7(K)" Exemption.

Section 207(a) of the FLSA requires employers to pay their employees overtime compensation for all hours worked over 40 hours per week. Section 207(k) provides a potential limited exemption from the overtime provisions of the FLSA for public agency employees who are engaged in "fire protection activities" or "law enforcement activities." In essence, "alternative 7(k) work periods" change the normal seven day, forty hour work week to "work periods" of from seven to twenty-eight days, with overtime owed for hours worked over a "threshold" per work period. "7(k) work period" overtime thresholds "translate" to more than forty hours per week. If an employer complies with the statute, and adequately establishes an alternative work period, then the employer's obligations for overtime at time and one-half begin after an employee has worked the alternative number of "regular" hours (the "7[k] threshold") in the alternative "7(k)" work period. Alternative 7(k) work periods do not happen "by default." Section 7(k) is an option for an employer. To choose this option requires affirmative action by the employer, to "establish" the alternative work periods in compliance with the statutory and regulatory requirements. An employer need not choose to use the alternative work periods of 7(k), but may, instead, pay its nonexempt employees under the "normal" FLSA forty hour week. If an employer does not establish 7(k) alternative work periods, its nonexempt employees must be paid under the normal FLSA §7(a) forty hour work week. (See, "Police Officers and the FLSA.")

State Law.

Some States may have wages and hours laws similar to the FLSA. State law wages and hours laws are in addition to FLSA requirements, and do not supersede the FLSA. Employees typically are entitled to the benefits of the federal FLSA or their State wages and hours laws, whichever are better.

Statute of Limitations

The normal FLSA statute of limitations entitles employees to recover back wages beginning two years before a complaint is filed and extending forward until the case is resolved. The statute of limitations is three years if the employer "willfully" or "recklessly" disregarded its FLSA obligations. NOTE that an employee's FLSA rights become "vested" only by the filing of a complaint in court.

Settlements.

The FLSA provides two and only two mechanisms for an employee and employer to enter into a "binding" settlement of FLSA claims. One is to settle a matter under the "supervision" of the Department of Labor. The other is to settle a matter in the course of litigation. A settlement made with DOL supervision will be binding, and operates as a waiver of additional claims by the employee.

Straight Time.

The FLSA requires wages to be paid at "straight time" for work performed during the "gap" between on the clock hours worked and the FLSA overtime threshold, but only in weeks in which the total hours worked include overtime hours. For example, if an employee works on the clock for 32 hours per week, and off the clock for an additional 10 hours per week, s/he is entitled to straight time for 8 off the clock hours and time and one-half for 2 off the clock hours.

"Thresholds" and "Gaps."

The FLSA requires overtime for hours worked over forty per week; in the slang this is called the FLSA "threshold." Sometimes employees work less than forty "regular" on-the-clock hours in a week, for example when they take a day off. The difference between the number of regular, on-the-clock hours worked in a week and the FLSA overtime threshold is sometimes called "gap" time. Employees with FLSA claims based on "off-the-clock" hours worked are entitled to overtime to the extent that their total hours worked in a work week exceed the threshold. Until an employee actually works more than the threshold, no FLSA overtime is owed. "Gap" hours worked would be payable (at best) at straight time rates in work weeks when the total hours worked exceeds the threshold.

Training Time.

Training time is generally compensable working time, with exceptions. Training time is not working time if it is specifically required by the law of a "higher jurisdiction" as a condition of employment. Training time is also not working time if it is (a) outside of the employee's regular working hours; and, (b) strictly voluntary; and, (c) not directly related to the employee's job; and (d) the employee must not perform any (other) productive work during the training.

Waiver.

FLSA rights cannot be waived, by collective bargaining agreemeents, employment contracts, or otherwise. (Generally, an employee is entitled to FLSA rights or collective bargaining rights, whichever are better.) "Failure to ask" for FLSA compensation is almost always irrelevant. Failure to use administrative procedures is irrelevant.

Work.

Most "job-related" activities are considered work under the FLSA, and must be compensated accordingly. Work includes activities which "benefit the employer" (at least in part) and which the employer "knows or has reason to believe" the employee is performing. If an employer does not wish work to be performed it must prohibit it. An employer may not sit back and accept the benefits of work performed without appropriately compensating employees.

Work Weeks.

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