Q. What is the FLSA?
A. The Fair Labor Standards Act (“FLSA”) is the
most general federal labor law. The FLSA establishes minimum
wage, overtime pay, recordkeeping, and youth employment standards
affecting full-time and part-time workers in the private sector
and in federal, state, and local governments. A key provision
of the Act is that most employees must be paid time and one-half
for all overtime "hours worked."
Covered non-exempt workers are entitled to a minimum wage
of not less than $6.55 per hour effective July 24, 2008. The
federal minimum wage changes to $7.25 per hour effective July
24, 2009. Many states also have minimum wage laws. Overtime
pay at a rate of not less than one and one-half times their
regular rates of pay is required after 40 hours of work in
Q. What activities are considered "work?"
A. The 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 tasks.
Q. What is "overtime?"
A. The 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 alternative thresholds.
Q. When is overtime pay due?
A. For covered, non-exempt employees, the FLSA requires overtime
pay at a rate of not less than one and one-half times an employee's
regular rate of pay after 40 hours of work in a workweek.
Some exceptions to the 40 hours per week standard apply under
special circumstances to police officers and firefighters
employed by public agencies and to employees of hospitals
and nursing homes.
Some states also have enacted overtime laws. Where an employee
is subject to both the state and federal overtime laws, the
employee is entitled to overtime according to the higher standard
(i.e., the standard that will provide the higher rate of pay).
Q. What is an FLSA threshold?
A. The 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
unless and until 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 35
hours per week, or some other formula. Must this overtime
be paid at time and one-half the officer's FLSA regular rate?
A. Not 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).
Unless and until 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. How many hours per day or per week can an employee
A. The FLSA does not limit the number of hours per day or
per week that employees aged 16 years and older can be required
Q. When can an employee’s scheduled hours of
work be changed?
A. The FLSA has no provisions regarding the scheduling of
employees, with the exception of certain child labor provisions.
Therefore, an employer may change an employee's work hours
without giving prior notice or obtaining the employee's consent
(unless otherwise subject to a prior agreement between the
employer and employee or the employee's representative).
Q. Is extra pay required for weekend or night work?
A. Extra pay for working weekends or nights is a matter of
agreement between the employer and the employee (or the employee's
representative). The FLSA does not require extra pay for weekend
or night work. However, the FLSA does require that covered,
non-exempt workers be paid not less than time and one-half
the employee's regular rate for time worked over 40 hours
in a workweek.
Q. Does leave time count as work time?
A. No. "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
Q. At what rate must FLSA overtime be paid?
A. Time 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 non-discretionary 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 performed.
Q. Does it matter that an employee did not "put
in for" the time spent performing work activities?
A. Generally 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
A. An 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
A. It 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 damages?
A. The 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) Exemption?
A. The 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
A. Maybe. 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?
A. Generally 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?
A. Maybe, 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?
A. You can file a claim with the U.S. Department of Labor
– Wage & Hour Division or you can file a private
lawsuit. Private lawsuits are more common.
Q. How does an employee start an FLSA case?
A. Usually by hiring an attorney. Many lawyers’ practices
do not include FLSA cases. As a consequence, many employees
will seek out attorneys with substantial FLSA experience or
local attorneys will "affiliate" with FLSA lawyers
on particular cases.
Q. What do I receive if I win my FLSA case?
A. Money damages. 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?
A. This 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?
A. No. The exception would be in the unlikely event that a
court determines that the lawsuit was "frivolous"
and had no underlying merit.
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?
A. To 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, or not.
Q. How long does an FLSA case take?
A. That depends. Legal proceedings can take longer than expected.
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 without going to trial,
but this is unpredictable. For whatever reason, some employers
decide to fight legitimate claims simply for the sake of fighting
them, no matter what the ultimate cost. If you work for one
of those employers, the case could take approximately two
(2) years from start to finish.
Q. What are the time limits on FLSA suits?
A. The 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 limitations.)
Q. What are the unintended consequences of an FLSA
A. The 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 may
Q. Do all "similarly situated" employees
have to participate in an FLSA suit if one employee decides
A. No. 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 overtime rights?
A. Virtually none. FLSA rights cannot be waived by collective
bargaining or otherwise. (Generally, employees are entitled
to the benefits of the FLSA or their collective bargaining
agreement, whichever is more favorable. However, a violation
of a collective bargaining agreement would not itself be a
violation of the FLSA and would not be enforced in an FLSA
Q. I'm a federal employee. Am I covered by the FLSA?
A. Yes, 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. Can my employer take deductions from my paycheck?
A. Deductions made from wages for such items as cash or merchandise
shortages, employer-required uniforms, and tools of the trade,
are legal as long as they do not reduce an employee’s
wages below the minimum rate required by FLSA or reduce the
amount of overtime pay due under the FLSA.
Q. Where do I get more information?
A. 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 se. There are numerous regulations,
administrative interpretations, and judicial decisions. Contacting
Dozier Law Group to speak with an experienced FLSA attorney
is a good place to start.
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