Fees. Successful FLSA Plaintiffs are entitled to an additional
award for "reasonable attorneys' fees" (plus reimbursement for many
out-of-pocket expenses incurred in litigating the lawsuit). Employees
are not responsible for paying an employer's attorneys' fees unless
their lawsuit is frivolous.
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 (at least some) FLSA overtime with "comp. time" instead
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.
Labor (DOL). The FLSA is a federal statute, regulated and
administered by the United States Department of Labor. The US DOL
website is linked to this one at Resources.
The "duties test" is one way the FLSA distinguishes exempt from
nonexempt employees. Irrespective of how they are paid (salary or
hourly), to be exempt from the FLSA overtime rules requires that
employees perform relatively high-level job tasks. For more about
this see FLSA Coverage.
"Early to Work"
-- "Late after Work." Nonexempt employees must be paid FLSA
overtime based on all the work they actually do, including performing
work outside of normal shift times (provided only that this was
"suffered or permitted" by the employer). For more about this see
Exempt and Nonexempt
Employees. Non-exempt employees are covered under the FLSA
overtime rules. Exempt employees are not. For more on this see FLSA
Fair Labor Standards
Act. Federal labor law of general and nationwide application,
including Overtime, Minimum Wage, Equal Pay Act. Also known as the
FLSA, or the "Garcia Act." Located at 29 USC§§201 et seq.
FLSA wages are determined by the number of hours an employee actually
works. All time actually worked counts, but only time actually worked
counts. "Hours not worked" are not governed by the FLSA, even if
they are considered "work time" or "paid time" by the employer.
Thus, "off the clock" work counts, but holidays, sick days, or other
days off do not count as FLSA hours worked. For more about this
see FLSA Overtime.
-- 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 for purposes
of FLSA overtime wage computations.
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.
The FLSA does not require meal periods. However, if there are meal
periods permitted, they count as compensable hours worked unless
the the employee is actually relieved from active job duties. If
an employee actually gets an uninterrupted meal period. while free
from active duties, the time need not be counted as work time.
Work." Also known as "off duty" 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. For more about
this see FLSA Overtime.
Nothing in the FLSA prohibits an employer from requiring employees
to be "on call." Off-premises on call or standby time is not required
to be counted as work time except under rare, peculiar and unusual
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" may be
different from "work weeks" or "work periods."
FLSA overtime is calculated at time and one-half of an employee's
"regular rate" of pay. Subject to some special rules, the regular
rate is the total non-overtime compensation received by an employee
(for work) 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.
Discrimination. The FLSA prohibits retaliation or discrimination
in the terms and conditions of employment 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. For more about this see Retaliation.
Salary Basis Test.
An employee is paid on a salary basis if s/he has a "guaranteed
minimum" amount of money s/he can count on receiving in the paycheck
for any work period during which s/he performs "any" work. The "salary
basis test" is one way the FLSA distinguishes exempt from nonexempt
employees. No matter what an employee's job duties are, with only
a few exceptions s/he is nonexempt unless s/he is also paid on a
salary basis. On the other hand, merely paying an employee on a
salary basis rather than hourly does not make the employee exempt
unless s/he also performs relatively high-level job duties. For
more on this see FLSA Coverage.
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, which are larger than forty hours per week.
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. An employee's FLSA rights become "vested"
only by the filing of a complaint in court.
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 U.S. Department
of Labor. The other is to settle a matter in the course of litigation.
A settlement made with DOL supervision, or in litigation, will be
binding, and operates as a waiver of additional claims by the employee.
The FLSA has limited application to straight time wages, except
for minimum wage laws. The only time the FLSA requires straight
time pay at an employee's regular rate is when the employee has
worked FLSA overtime.
"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 are entitled to FLSA overtime pay only if and to the extent
that their total hours worked in a work week exceed the threshold.
However, until an employee actually works more than the threshold,
no FLSA overtime is owed.
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.
FLSA rights may not be waived, by collective bargaining agreements,
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" and which the employer "knows or has reason
to believe" the employee is performing.
The FLSA requires that wages due be calculated on a work week by
work week basis. A work week is seven consecutive days. Work schedules
must be translated into work weeks to determine FLSA wages due.
(Some employees may have work periods different from seven days.)