Common FLSA Questions

The FLSA is the Fair Labor Standards Act which provides the nation's workers with the right to be paid the minimum wage and the right to receive overtime pay when they work more than 40 hours a week. For law enforcement and fire protection employees, if an employer adopts it, there is a partial overtime exemption under section 7(k) in which employers do not have to pay overtime until 43 hours a week for law enforcement, 53 hours for fire fighters, or some other work period that the employer has established and adopted between 7 and 28 days.

Some state laws provide greater overtime rights to employees. Employees are entitled to receive whichever law - the FLSA or state law - provides greater benefits for employees.

Payment on a salaried basis does not affect your right to receive overtime pay for work over 40 hours a week. Whether an employee is entitled to overtime pay depends on the employee's job duties. Most employees, including millions of salaried workers, are entitled to receive overtime pay when they work over 40 hours a week. There are some very limited exemptions to the right to overtime pay, such as the exemption for executives, but most employees, including salaried workers, are entitled to overtime pay. Significantly, all hourly workers, regardless of their job duties, are entitled to receive overtime pay.

Yes, we have been retained by many unions to enforce the right to Fair Labor Standards Act overtime pay for the employees they represent. These cases arise most often in two circumstances: 1) There are certain work activities that employers refuse to count as work time especially pre-shift activities (e.g., picking up and putting on equipment, reviewing employer memos, etc.), travel time, and at-home work such as answering work-related calls; and 2) employers fail to include certain premiums that unions negotiate in the rate at which overtime is paid. For example, unions will negotiate that workers who work at night are entitled to a shift premium or workers who do not use much sick leave will receive a bonus at the end of the year, and the employer will fail to include these payments in the rate at which overtime is paid to the employees.

The FLSA provides a floor level of statutory rights and benefits. Once those are established, the employer can not attempt to negotiate them away; they are fixed. In addition, employees appreciate receiving additional compensation through a union sponsored lawsuit.

Yes. There are millions of employees who work at desks in white collar, office settings who are entitled to Fair Labor Standards Act overtime compensation when they work over 40 hours a week. Courts and arbitrators have awarded overtime pay to escrow closers, insurance adjusters, project managers, management analysts, mortgage lenders, wholesale salespeople, probation officers, assistant restaurant managers, police detectives, electronics, architect, accounting and mechanical technicians, budget analysts, paralegals, and a variety of other office jobs. Under the overtime laws, employees are presumptively entitled to premium overtime pay and the types of workers who are exempt from the overtime laws are limited to certain specified exemptions.  Most employees, including most employees who work in offices, do not fall within these exemptions and are therefore entitled to overtime pay.

Overtime must be paid at one and one-half times an employee's regular rate of pay for each hour worked in excess of 40 hours per week (for certain police, fire fighters, and nurses, the hourly standard for overtime pay is slightly different). The "regular rate of pay" is calculated by taking the total remuneration an employee has received for the workweek and dividing that amount by the number of hours for which the compensation was intended to compensate the employee.  For example, if an employee is paid a salary for 35 hours a week, the employee's regular rate is calculated by dividing the employee's salary by 35 hours.  Many employers unlawfully fail to include certain premium payments, such as shift differentials, bonuses, and other similar payments in the regular rate.  By doing so, these employers are depriving employees of the overtime pay to which they are entitled under the law.

End of the year bonuses must be included in the overtime rate.  This is done by pro-rating the amount of the bonus back over the weeks that it is intended to cover.  This is a common violation.

Under the Fair Labor Standards Act, employees are entitled to the difference between what they were paid and the amount they would have been paid had the employer paid them overtime properly and, in addition, an equal amount as liquidated damages or interest.  In addition, employees are entitled to recover attorneys' fees and costs.

State laws may provide even greater damages.  For example, some state laws contain penalties for late payments to employees which equal or exceed the amount of the payment.

Under the Fair Labor Standards Act, employees can go back at least two years and possibly three years from the date the case is filed. Some states provide for longer periods of time. For example, in New York employees can recover damages for wage violations going back 6 years from the date the case is filed. Under both state and federal laws damages accrue up to the date that the employer changes its unlawful practice or the employee leaves employment.

An employer must pay for all work time that it "suffers or permits" an employee to work, including time the employee spends engaged in activities to get ready to start his or her shift. For example, in Alvarez v. IBP, the Supreme Court ruled that employees were entitled to pay for work time the time the employees first picked up equipment at their plant until the time they returned the equipment at the end of the day.  The Court held that this included time spent waiting in line to pick up more equipment, time putting on equipment and time spent walking to their workstation. Simply put, employers can not avoid payment for work time by simply labeling it "pre-shift" or "preparatory time."

No.  Rounding of time is permitted only if an employer rounds up and rounds down, and only then for small increments.  For example, an employer can provide that an employer must work at least 7.5 minutes to be paid, but then if the employee works over 7.5 minutes, the employee must be paid for 15 minutes of work time.  An employer can not simply deprive an employee of 15 minutes a day of work time.  If an employer has a time clock, an employer should pay for each minute of work time that an employee works.