In 1938, the Fair Labor Standards Act was passed which protects employees’ rights to fair wages. Also known as the FLSA, this law protects employees by placing regulations on interstate commerce employment. It oversees things like child labor, minimum wage, and overtime pay; and has standards for both salaried employees and those paid by the hour.
What is the Fair Labor Standards Act?
The FLSA is a federal law that oversees wage regulations for both full and part time employees whether they are employed by a private company or government employer. It regulates things such as the minimum wage, child labor, recordkeeping, and overtime. Federal minimum wage was increased to $7.25 in 2009 and has not been raised since. Generally, if employees work more than forty hours per workweek, they should be paid ‘time and a half’ which is 1.5 times their regular rate of pay.
Who is Protected By the FLSA?
The Fair Labor Standards Act protects employees of public agencies, interstate commerce, production of commercial goods, domestic service, hospitals, schools, and other education facilities. Independent contractors and volunteers are not legally considered employees, and as such, are not protected by the standards and regulations of the FLSA. Employees who are eligible for overtime compensation are required to complete a record of their attendance and times worked.
Primary Areas of Coverage in FLSA
Minimum Wage – The FLSA maintains the federal minimum wage. As of 2009, the minimum wage has been $7.25 per hour. While states are free to set their own minimum wage rates, the only states with a minimum wage lower than the federal rate are Georgia and Wyoming. Both states pay a minimum wage of $5.15 per hour, although employers who are subject to FLSA regulations are required to pay no less than the federal minimum.
Overtime – If an employee is sixteen or older, they may work as many hours as their employer allows. However, if an employee works more than forty hours in a workweek, they may be entitled to overtime pay. Overtime pay must be at least one and a half times the normal hourly rate of pay for the employee.
Hours Worked – The FLSA oversees all time that an employee is doing their job either on site, on duty, or at a designated location.
Recordkeeping – The FLSA requires that employers keep accurate records of employee timecards and payroll. They must also have an official poster of FLSA requirements displayed for employees.
Child Labor – The FLSA maintains regulations that ensure that work does not interfere with a child’s education or best interests. It also limits the types of jobs that children can work and the conditions they can work under.
FLSA Minimum Wage Protections
Though the FLSA maintains a federal minimum wage of $7.25 per hour, many states have instituted their own laws that set their own minimum wage. The FLSA does not govern state law outside of provisions that are in line with preexisting FLSA requirements.
California Minimum Wage
As of January 2023, the state imposed minimum wage in California is $15.50 per hour for all employers. In the past, employers with 26 or more employees were required to pay slightly more than employers with fewer employees. California minimum wage has been rising steadily for years now:
Minimum Wage by Year
| Year | Employers w/ <26 Employees | Employers w/ 26+ Employees |
| 2023 | $15.50 | $15.50 |
| 2022 | $14 | $15 |
| 2021 | $13 | $14 |
| 2020 | $12 | $13 |
| 2019 | $11 | $12 |
| 2018 | $10.50 | $11 |
| 2017 | $10 | $10.50 |
FLSA Overtime Protections
The FLSA maintains that an employer must pay covered non-exempt employees time and a half for any time worked over forty hours in a given work week. This does not include paid time off. A work week might not line up with what is considered a calendar week but is a fixed increment of 168 hours. While the work week may vary for different employees, employers are prohibited from averaging hours beyond the confines of a given work week. Furthermore, overtime pay must generally be paid out on the pay period in which it was earned.
Classifying Employees Under FLSA
It is important to know whether a worker is an employee or an independent contractor. Not only are there differences in the rights and benefits, but employers may face fines and legal action if they are caught misclassifying their workers. There are many questions that can be asked to help determine if a worker is an employee or an independent contractor:
- Does the employer or the worker determine when and how the work is done?
- Does the employer or the worker determine what the worker’s responsibilities are?
- Does the employer or the worker provide the supplies and equipment needed?
- Does the employer or the worker pay the payroll taxes?
- Does the employer or the worker set the rate of pay?
Who is Exempt from Minimum Wage & Overtime Wages?
If an employee is considered nonexempt, then their employer is required to pay them overtime. If an employee is considered exempt, then their employer is not required to pay them overtime. While there are some jobs that are considered exempt in of themselves, there are three conditions that must be met to determine if an employee is considered exempt, such as:
- The amount the employee is paid – Generally $35,568 or more a year
- The way they are paid – Generally salary
- The type of work performed – As defined by FLSA regulations
Freelance workers and independent contractors are not covered by the FLSA. Employers with less than $500,000 a year in sales as well as small farms that do not engage in interstate commerce are also exempt. Other exempt workers also include:
- Executives who manage at least two people and authorize job status of others
- Administrators who directly work for management and control their own work duties
- Outside salespeople who work primarily offsite and on commission
- Computer workers paid at least $684 weekly by salary or fee basis
- Workers employed by seasonal recreation establishments
- Employees of small local newspapers including delivery workers
- Sailors on foreign vessels
- Personal caregivers such as homecare aides and babysitters
- Employees working under an apprenticeship
Record Keeping That Meets FLSA Standards
When an employer is covered by the FLSA, they must keep detailed records for their non-exempt employees. While there is no uniform standard for how these records are kept, there are specific pieces of information that need to be recorded with complete accuracy for each employee:
- Full Name
- Social Security Number
- Date of Birth (employees under 19)
- Sex
- Occupation
- Start of Workweek Day and Time
- Daily Hours Worked
- Workweek Hours Worked
- How wages are paid
- Pay Rate by Hour
- Total Straight-time Earnings
- Workweek Overtime Earnings
- Wage Deductions and Additions
- Wages per Pay Period
- Dates of Pay Period
- Date of Payment
Different types of records must be kept on file for different lengths of time. Payroll, collective bargaining agreements, and sales or purchase records must be kept for at least three years. Things like timecards, work schedules, and other methods for computing wages must be kept for at least two years. These records should be kept on site or at a central record keeping office. Employers are required to make these records open and available for Division inspection.
How FLSA Defines and Regulates Hours Worked
The law defines the word ‘employ’ as “to suffer or permit to work”. The time that an employee spends on site or on duty is considered part of their workweek. The workday begins when the employee first starts working and ends when the employee completes their work. The workday often includes more than just hours worked. There are many different classifications of hours under the FLSA and variables that determine if they are considered working hours.
Waiting – There are two different kinds of waiting time. Being engaged to wait is considered work time such as short periods of down time between tasks. Waiting to be engaged is not considered work time such as free time between jobs.
On Call – An employee is considered working while on call if they are required to stay on site. Generally, if an employee is free to go about their day, they are not considered working while on call. The extent of that freedom may change whether or not the employee is considered working.
Breaks – Short breaks, often five to twenty minutes, are generally considered to be part of hours worked and are paid time. Employers may implement their own consequences for employees taking extended breaks and may be permitted to not count the extra time as time worked. Meal breaks, often thirty to sixty minutes, are usually not considered to be part of hours worked and are unpaid so long as the employee is completely free of their work responsibilities while on break.
Sleep – If an employee is on duty for shifts of twenty-four hours or longer, they may negotiate unpaid sleeping breaks with their employer. These breaks must be more than five and less than eight hours and the employer must provide a proper sleeping area. For shifts shorter than twenty-four hours, authorized sleeping breaks are considered time worked.
Training & Meetings – There are four factors that must apply in order for a meeting or training program to be unpaid: Outside of working hours, attendance is voluntary, unrelated to the employee’s job, and no work is required to be done.
Daily Commute – Regular travel time from home to work and back is not considered hours worked.
One Time Extended Commute – If an employee routinely works at one location and is required to go to another location in another city for a day, the additional commute time may be considered time worked. Employers are permitted to exclude the employee’s normal commute time from those hours.
Daily Travel – Some jobs may require travel as part of the employee’s duties such as deliveries or traveling between job sites. This travel time is considered hours worked.
Trips – If an employee is required to travel for work and is kept away overnight, this is considered travel away from home and is hours worked. Not only is working time counted, but also work hours on days off while away.
FLSA Regulations on Child Labor
There are many restrictions on the type of work that employees under eighteen years old may be permitted to perform as well as the conditions under which they are permitted to work. The FLSA does not allow minors to work jobs that they consider hazardous to the minor’s wellbeing or education. There are also restrictions governing the hours a minor is allowed to work and the breaks they must be provided. Each state also has their own laws regulating child labor that employers should be aware of.
Recent FLSA Updates
The 2018 amendments to FLSA regarding tipped employees were updated in 2020 and 2021. The new regulations forbid employers from taking any part of the employee’s tips and also updated the restrictions on when an employer can alter an employee’s pay based on earned tips.
The Joint Employer Rule was rescinded in July of 2021.
The United States Department of Labor recently began proposal of a new rule to update the regulations and guidelines for determining if a worker is an independent contractor or an employee in accordance with the FLSA. This rule was proposed in October of 2022, replacing the January 2021 rule with a more accurate and precise method for classification. The rule is considered mutually beneficial for both workers and employers, reducing the risk of employee misclassification, and increasing employer confidence and peace of mind when hiring independent contractors.
Common Violations of FLSA
Unfortunately, there are many ways in which employers can and do violate the Fair Labor Standards Act:
Misclassification – Employers may sometimes classify an employee as exempt based on their job title or type of pay rate even though the job duties and amount of pay indicate that the employee is nonexempt. It is important for employers to be mindful of all the variables of a situation and for employees to be well informed of their rights.
Not compensating off the clock work – When an employee works beyond their scheduled time, even if they are clocked out, that is still considered hours worked and the employee should be compensated. Even if the employer did not request or permit the off the clock work, they are still responsible for paying the employee.
Not compensating working breaks – When an employee is expected to be on call through their breaks, or works through their lunch, that time is considered hours worked and the employee must be compensated. In order for a break to be unpaid, the employee must not be performing any job-related duties such as cleaning, replying to emails, or interacting with clients.
Overtime waivers – If an employer has an employee sign a document waiving their right to overtime pay, that document is invalid and unenforceable.
Averaging workweeks – Sometimes, an employer may average out the number of hours an employee has worked over two or more weeks to avoid paying overtime. If an employee takes a day off one week and then works an extra eight hours the next week, the employer may average those hours out to say the employee worked forty hours each week. This may seem mathematically logical, but it is actually legally prohibited.
What to Do If Your Employer Violates the FLSA
Because there are employers who will violate FLSA, employees must be aware of the options available to them and the steps to take if they find themselves in such a situation. Complaints regarding FLSA violations can and should be filed with the Department of Labor’s Wage and Hour Division.
The WHD investigates violation claims by having a representative conduct interviews with the employer and various employees, research payroll and timecard documents, and gather any other information that may indicate if a violation has been committed.
The person who files the complaint does not need to be the person against whom the violation was committed. Anyone who witnesses their employer violating the FLSA may report that violation.
It is prohibited for an employer to retaliate against an employee who has filed a complaint or participated in an investigation against them.
How to File FLSA Complaint
When filing a complaint with the WHD, there are several details you will need to provide:
- Your name
- Your address
- Your phone number
- The company’s name, address, and number
- Owner/employer/manager name
- Your job duties
- Your pay rate and method
It is good to be as detailed as possible when providing information. Your complaint is the starting point of their investigation. When filing a complaint as a third party, you may not have all of the information needed, but it is important to share as much as possible.
Contact Mesriani Law Group if You Have Experienced a FLSA Violation
The Fair Labor Standards Act exists to protect workers and their right to fair wages. All too often, employers try to circumvent the law and get away with cheating their employees out of the money they’ve earned. When these violations occur, employees have the right to file complaints against their employers. If you are facing retaliation for filing a claim with the Department of Labor or participating in an investigation against your employer, call Mesriani Law Group today for a free consultation.
Fair Labor Standards Act FAQs
What are the four main elements of the FLSA?
There are four primary areas established and enforced by the Fair Labor Standards Act. Establishing and enforcing minimum wage, overtime pay, regulations for recordkeeping, and regulations for child labor. While some jobs and employees may not be covered by the FLSA or exempt from overtime, the act generally applies to part time as well as full time workers of both private and government employers.
What are some common mistakes made under FLSA?
Whether intentional or accidental, there are employers who do not adhere to the regulations set forth by the FLSA. One of the most common mistakes employers make is misclassifying their employees. Not paying overtime properly and allowing employees to work off the clock or during their breaks without compensation are also violations that occur far too often. It is important for everyone on both sides of an employment relationship to be familiar with the law and how it applies to them.
What is not regulated under the Fair Labor Standards Act?
There are several aspects of employment that the Fair Labor Standards Act does not oversee. This includes but it not limited to things like the payment of wages in excess of FLSA requirements, lunch and rest breaks, termination letters, and final payments for terminated employees. The FLSA also does not regulate paid time off. It is important to also be aware of state laws and regulations pertaining to all employment matters.
