Questions and Answers
Q. What is the FLSA?
A. The FLSA
is the most general federal labor law. It contains the minimum wage
provisions, Equal Pay Act, child labor restrictions, and a variety
of other federal labor and employment law sections. A key provision
of the Act is that most employees must be paid time and one-half
for all overtime "hours worked."
Q. Is the FLSA the
same as the "Garcia Act?"
but mostly as a matter of slang. The 1985 Supreme Court decision
in Garcia v. San Antonio held that the FLSA applied to public sector
(government) jobs as well as private sector employment. The FLSA
has often been referred to as the "Garcia Act" since the Supreme
Court decision. As a result of this court decision, Congress passed
some FLSA amendments addressing the FLSA application to government
employment, and these amendments have sometimes also been called
the Garcia Act.
Q. What activities
are considered "work?"
courts have held that work time under the FLSA includes all time
spent performing job-related activities which (a) genuinely benefit
the employer, (b) which the employer "knows or has reason to believe"
are being performed by an employee, and (c) which the employer does
not prohibit the employee from performing. These can include activities
performed during "off-the-clock" time, at the job site or elsewhere,
whether "voluntary" or not.
Courts have awarded
FLSA damages for "off-the-clock" time spent by employees maintaining
equipment, staying late after normal shifts without "putting in"
for overtime, doing job-related paperwork "at home," making and
responding to job-related telephone calls, working through meal
periods, and many other activities. Employees sometimes underestimate
the amount of "off the clock" time they spend performing compensable
Q. What is "overtime?"
word overtime has a technical definition under the FLSA, and means
all time actually worked over a "threshold." The usual threshold
is 40 hours per work week. Some government or medical jobs may have
Q. What is an FLSA
FLSA generally requires overtime for hours worked in excess of 40
hours per week. In a regular, 40 hour week situation, the FLSA "threshold"
is thus 40 hours per week. Some government employees, and some medical
employees, may have different thresholds. For FLSA purposes, only
"actual" work time counts toward the overtime threshold. Leave time
does not count as work time under the FLSA, even if the time is
paid for and considered working time for other purposes. For example,
suppose an employee works 4 of his or her 5 regularly scheduled
eight-hour days in a week, and takes leave on the fifth day. The
employee will have worked 32 "regular" hours that week. Any additional
time worked by the employee during that week (whether "on the clock"
or "off the clock") will not "count" for FLSA overtime until (and
to the extent that) the total number of hours worked that week exceeds
40 -- in the example, the first 8 "extra" hours need not be paid
as overtime under the FLSA.
Q. A labor practice
or contract may provide for overtime for employees working in excess
of 8 hours per day, or 37.5 hours per week, or some other formula.
Must this overtime be paid at time and one-half the officer's FLSA
necessarily. The word overtime has a technical and restricted definition
in the FLSA. FLSA requirements typically apply only when hours worked
exceed the applicable FLSA overtime threshold in a work week or
work period. FLSA overtime is due only for hours worked over the
FLSA threshold, even if "contract overtime" may provide employees
with overtime on some other formula (such as hours worked over 8
per day). Until and unless the FLSA overtime thresholds are met
and exceeded, the FLSA rules for regular rates or overtime rates
are generally inapplicable (assuming no minimum wage violations).
If a labor-management contract or practice calls for overtime to
be paid for hours worked below the FLSA threshold, neither the FLSA
regular rate nor overtime rate requirements necessarily apply. Until
and unless the FLSA overtime threshold is met and exceeded, an employee's
wage rate can be different from the FLSA-mandated rate without violating
the FLSA (again, assuming no minimum wage violation).
Q. Does leave time
count as work time?
"Hours not worked" need not be counted as "hours worked" for purposes
of FLSA wage computations, even if they are counted as work time
for some other purpose such as pensions or for pay computations
under employment agreements.
Q. At what rate must
FLSA overtime be paid?
and one-half the "regular hourly rate." (For employees whose normal
pay is not an "hourly" rate, their regular rate requires converting
pay to an hourly equivalent. There are some peculiar FLSA arithmetic
rules about how to do this.) Longevity pay, shift differentials,
and similar nondiscretionary wage augments paid for work should
generally be included in calculating the FLSA overtime rate. There
are provisions which may permit arrangements to pay for some work
at a different rate, but only if the work is different from the
employee's regular job, and only by agreement before the work is
Q. Does it matter
that an employee did not "put in for" the time spent performing
not. "Failure to ask" is not a defense for an employer in an FLSA
case. Failure to ask might conceivably be relevant on the question
of whether an employer knew or had reason to believe that an employee
was performing off duty work, but even in this situation failure
to ask would be only one factor on the question.
Q. How does an employee
prove that the employer knew or had reason to believe that off the
clock work was being performed?
employer will be held to "know" what it "could have found out" if
it had paid attention to what its employees were doing. The legal
standard is whether an employer could have learned of the handler's
activities by making reasonably diligent inquiries. According to
the courts, it is a "rare" case in which an employer will be found
to lack the requisite knowledge when the activities in question
are "part and parcel" of an employee's job, unless the employee
has deliberately hidden the fact that s/he is performing them.
Q. How do I prove
the amount of time spent doing off-the-clock compensable activities?
is up to the employer to control the work of its employees, and
to maintain records of the time spent by employees performing compensable
activities. If an employer does not maintain the required records,
the employee is entitled to recover based on good faith, reasonable
and realistic estimates.
Q. What are liquidated
FLSA provides that a successful employee is usually entitled to
double the amount of unpaid back wages, called "liquidated damages."
Essentially, liquidated damages are in lieu of interest. An employer
can avoid paying liquidated damages only if it shows that it acted
in good faith in failing to pay for off the clock work, and that
it had a reasonable basis to believe that it need not pay for off
the clock work. "Good faith" has a special meaning under the FLSA,
and requires that employers have made specific investigation of
the application of the FLSA to particular types of employees. Liquidated
damages are the rule, not the exception. Employees are normally
entitled to liquidated damages.
Q. What is the 7(k)
FLSA generally requires overtime at time and one-half for all hours
worked over 40 per week. There is, however, a special rule for government
police agencies and fire departments which allows a different "work
period" in some circumstances. If the employer establishes an alternative
work period under section 7(k) of the FLSA, overtime is owed (under
the FLSA) only for hours worked in excess of a threshold number
of hours per work period, which will be different from (and more
than) the normal 40 hours per week. For example, a police employer
may establish a 7(k) work period of 14 days. If the employer has
complied with the requirements for establishing such an alternative
work period, FLSA overtime is owed only for hours worked in excess
of 86 hours in a 14 day work period.
Q. I already get overtime.
Does the FLSA apply to me?
Many employees put in off the clock time for which they are entitled
to be paid. The Act defines "work" very broadly, and sometimes employers
have failed to capture or compensate a variety of "off the clock"
activities which count as work under the Act.
Q. Does it matter
that I never reported the time or asked for overtime?
not. It is the employer's obligation to control the work. If an
employer does not wish work to be performed it must prohibit it.
"Failure to ask" for overtime is usually not a defense for an employer
in an FLSA case. An exception might be if the employer has a requirement
that generally all time be reported and actually has enforced it,
or if an employee's failure to report means that the employers did
not know the work was being performed.
Q. I get "compensatory
time" in lieu of cash for overtime. Is this allowed?
but only for public sector (government) employees. Comp. time in
lieu of cash for FLSA overtime is not generally permitted in the
private sector. A public sector employer may pay (at least some)
FLSA overtime with comp. time.
Q. How do I enforce
my FLSA rights?
by complaining to the U.S. Department of Labor or bringing a private
lawsuit. Private lawsuits are more common.
Q. How does an employee
start an FLSA case?
by hiring an attorney. The FLSA is not "rocket science," but it
is also not part of most "regular" lawyers' day to day practices.
As a consequence, many employees will seek out attorneys with substantial
FLSA experience, or local attorneys will "affiliate" with FLSA lawyers
on particular cases (usually at no additional cost to the employee).
Q. What do I get if
Successful FLSA plaintiffs are entitled to back pay for all unpaid
overtime, usually beginning two years before the complaint is filed.
In most cases, they are also entitled to double the amount of back
pay. This is called liquidated damages, and is essentially in lieu
of interest on the unpaid wages. The Act also requires the employer
to reimburse out of pocket litigation expenses and pay an additional
attorneys' fee award. Some pre-tax FLSA recoveries by employees
have been quite substantial. For employees nearing retirement, back
pay awards may increase pension benefits.
Q. Is money recovered
in an FLSA case taxable?
Q. What is the effect
of an FLSA recovery on a pension?
will depend on the pension system's rules. However, at least some
of an FLSA award may be considered "back pay." Therefore, if pensions
are based on a percentage of wages earned or "average salary," an
FLSA recovery may increase the amount of pension an officer can
receive. Thus, in some circumstances an FLSA award can be "the gift
that keeps on giving."
Q. Are employees obligated
to pay the employer's legal fees if they lose the case?
(except in the unlikely event a court were to decide the suit was
Q. How do employees
pay their FLSA lawyers?
A. This is between
the individual employees and the lawyers. Many FLSA lawyers will
take FLSA cases on some variation of a "contingency fee." This usually
means that the employees pay no legal fees unless and until they
win the case, and then fees are based on a percentage of the amount
recovered. Successful FLSA plaintiffs are entitled to an attorneys'
fee award from the employer in addition to any other recovery (like
in civil rights cases).
Q. What actual financial
costs or risks are there for an employee to bring an FLSA case?
some extent this is between the individual employee and the attorney.
If the employee hires attorneys on a contingency fee basis, there
are no "up front" expenses for legal fees. However, employees are
responsible for court costs, such as filing fees, stenographic transcription
fees, etc. These may, or may not, be "fronted" by the attorneys,
but employees are ultimately responsible for paying (or reimbursing)
these expenses. (Court costs are paid by the loser, so employees
are actually "on the hook" for these expenses only if they lose
the case.) Individual arrangements with particular lawyers may also
involve the employees paying some additional expenses directly,
Q. How long does an
FLSA case take?
knows? Almost everyone understands that legal proceedings are often
slow. Most FLSA cases are filed in federal courts, and how fast
a case can get to trial varies from district to district (and judge
to judge). Many FLSA cases settle before trial, but this is unpredictable.
Q. What are the time
limits on FLSA suits?
FLSA normally permits recovery for work performed beginning two
years before a complaint is filed in court (and continuing "forward"
until the case is resolved). Recovery for this period is essentially
on a "no fault" basis. An additional year's recovery period is permitted
if the employer "knew" that its employment and pay practices violated
the FLSA, but "disregarded" these obligations. "Third year" cases
are rare, but not unheard of. Nothing but the filing of a legal
complaint in court "stops the clock." (A complaint to the employer,
or the Department of Labor, does not "toll" the FLSA statute of
Q. What are the "downstream
consequences" of an FLSA case?
FLSA prohibits retaliation or discrimination against an employee
who brings an FLSA case. These provisions have "teeth," but do not
cover "routine hassling." The FLSA does not prohibit management
from changing working conditions or schedules to minimize or eliminate
FLSA overtime liabilities in the future. Local laws or collective
bargaining agreements may govern and limit the changes an employer
Q. Do all "similarly
situated" employees have to participate in an FLSA suit if one employee
decides to sue?
FLSA cases are not "class actions." No employee need bring or join
an FLSA suit if s/he does not want to. However, similarly situated
employees are permitted to join an existing FLSA case, and this
is a common procedure. If an employee does not join an existing
FLSA suit s/he will not be entitled to recover any money as a result
of the suit. And as a practical matter, any downstream consequences
which may result from one employee bringing an FLSA action (such
as schedule restructuring) will likely apply equally to all similar
employees in an organization.
Q. What effect do
the provisions of a collective bargaining agreement have on FLSA
none. FLSA rights cannot be waived, by collective bargaining or
otherwise. (Generally, employees are entitled to the benefits of
the FLSA or their CBA, whichever is more favorable. However, a violation
of a CBA would not itself be a violation of the FLSA and would not
be enforced in an FLSA legal action.)
Q. I'm a federal employee.
Am I covered by the FLSA?
with some differences. The FLSA applies to federal employees, unless
some specific federal statute creates different wage rules. There
are some of these (typically in Title 5). In addition, federal employees
FLSA rights are regulated by OPM, whose regulations are similar
but not identical to the DOL FLSA regulations.
Q. Where do I get
question. There are few general information sources on the FLSA,
and in most cases individual employees will want analysis and evaluation
of their individual circumstances. The statute itself is at 29 USC
§201 et seq. There are many, many Regulations, administrative interpretations,
and judicial decisions. The U.S. DOL website is linked to this one
at Resources. Your best bet may be to contact an attorney with experience
in FLSA matters.
Employees with individual
questions may contact Chamberlain, Kaufman & Jones for free
consultations. Send e-Mail to: firstname.lastname@example.org.