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What is the FLSA? |
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The FLSA is the Fair Labor Standards Act. It is the federal law
that governs payment of the minimum wage and payments for overtime.
This is the law that requires is that most employees must be paid
time and one-half for all "hours worked" over 40 hours
in a work week (a defined 7-day period). 
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What is "overtime?" |
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For most employees, overtime is all the hours a person works over
40 in one work week. Overtime is supposed to be paid at time-and-a-half
of an employee's regular rate of pay. For example if you make $10
per hour, then you should be paid $15 per hour for all hours you
work over 40 in a work week.
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At what rate must overtime be paid?
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Overtime must be paid at time and one-half the "regular hourly
rate" for every hour over an employee works over 40 hours (or
the applicable threshold) in a workweek. (For employees whose normal
pay is not an "hourly" rate, their regular rate requires
converting pay to an hourly equivalent.) Longevity pay, shift differentials,
and similar nondiscretionary additional wages should generally be
included in calculating the FLSA overtime rate.
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Does it matter that I did not "put
in for" or seek prior approval for the time spent performing work
activities? |
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Probably not. If your employer knew you were working overtime
or reasonably should have known it, then you are probably entitled
to be paid for the overtime. Many employers will tell employees
that they will not pay for overtime that is not approved.
However, if they know employees are working overtime, even if it
is not approved, they are supposed to pay the employees for the
overtime work.
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Does it matter that I never reported
the time or asked for overtime? |
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Probably 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 employer did not know the work was being performed.
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I am classified as an independent contractor.
Am I entitled to overtime pay? |
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Maybe, but it depends on if you are truly
an "independent contractor"
or not. If you are NOT and independent contractor, then you
are an employee and entitled to overtime under the FLSA. However,
if you are properly classified as an independent contractor, you are
NOT entitled to overtime pay from the company you contract with.
For a discussion about what factors make a person an independent contractor,
take a look at this section of the "What
Are Your Rights to Overtime" page. |
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How
do I prove that my employer knew or had reason to believe that off
the clock work was being performed? |
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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 employee'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.
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How do I prove the amount of time spent
doing off-the-clock compensable activities? |
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The employer is supposed 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 a good faith, reasonable and realistic estimate
of the time he or she worked. In other words, you get to estimate
how many overtime hours you worked. The employer will have the burden
to challenge the reasonableness of the employee's estimates. Thus,
as long as the employee's word is reasonable, what he or she estimates
will count as accurate.
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I get "compensatory time"
("Comp. Time") instead of cash for overtime. Is this allowed?
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No, if you work for an employer other than the government. Only
public sector (government) employees are permitted to receive comp.
time. Comp. time instead 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.
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What are liquidated damages? |
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These are damages an employee is entitled to receive if he or she
brings a successful claim. The amount of damages are defined by
the FLSA law as being double the unpaid wages due to the employee.
Thus, if an employee is awarded $10,000 in unpaid wages, he or she
may be entitled to get an additional $10,000 as liquidated damages,
bringing the total recover to $20,000. These damages are essentially
awarded in stead of lost interest. An employer can avoid paying
liquidated damages only if it shows that it acted in good faith
and that it had a reasonable basis to believe its practices complied
with the law. "Good faith" has a special meaning under
the FLSA, and requires that employers have made specific investigation
into the application of the FLSA to the particular situation.
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Does leave time count as work time? |
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No. Only hours an employee actually works counts as compensable
work time. This is true even if the hours are counted
as work time for some other purpose such as pensions or for pay
computations under employment agreements.
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What
activities are considered "work?" |
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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 back pay 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, being on call, and
many other activities. For a fuller discussion of what types of
activities are considered as work, see the "What
Are Hours Worked" page.
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I already get overtime. Does the FLSA
apply to me? |
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Maybe. Many employees put in "off the clock time" for
which they are entitled to be paid. The FLSA defines "work"
very broadly, and sometimes employers have failed to count all the
hours an employee actually works.
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What
is the work week standard? |
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The work week is the seven (7) days period that is designated
by the employer as the "work week" and is the standard
for computing overtime pay due. The important point here is
that EACH WEEK STANDS ALONE. Work time may not be "averaged"
from work week to work week. So, for example, an employee
who works 46 hours in week one, followed by 34 hours in week two,
is entitled to 6 hours of overtime pay for the first week, even
though the average hours for the pay period are 40 per week.
There are two limited exceptions for this rule - some medical care
employees and government police officers and fire fighters are permitted
to be paid on special "alternative work periods."
However, the FLSA does not guarantee any employee
any particular amount of work time per week, or require any particular
schedule of work. Therefore, an employer may "adjust schedules"
within a work week to avoid an employee working FLSA overtime.
For example, if nonexempt employees work "extra" time early in a
work week, the employer may send them home later in the same work
week so that total hours actually worked in that work week will
not exceed 40.
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How
do I enforce my FLSA rights? |
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You can either bring a private lawsuit or contact the U.S. Department
of Labor ("DOL"). If the DOL investigates your claim,
they do not always prosecute it, so filing a complaint with the
DOL might not get you paid. Also, if the DOL enforces your
rights, you will probably not get paid the liquidated
damages that you are entitled to under the law. If you
are interested in having us review your potential claim, please
fill out the questionnaire
or contact us.
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How do I bring an FLSA lawsuit?
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By hiring an attorney. Not all attorneys are familiar with this
area of the law and employees should seek out attorneys with substantial
FLSA experience. If you already have a lawyer and he or she is not
familiar with this law, you attorney may choose to "affiliate"
with a lawyer experienced in this area of the law. If you are interested
in having us review your potential claim, please fill out the questionnaire
or contact us.
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What do I get if I win? |
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A successful case will result in an employee getting paid unpaid
wages or overtime. Successful 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 paid instead of interest on the unpaid wages.
The FLSA also requires the employer to reimburse out of pocket litigation
expenses and pay an additional attorneys' fee award.
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Won't my employer just fire me if I
sue them for unpaid wages or overtime? |
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Not legally and not without risking a substantial penalty. The
FLSA specifically provides that it is "unlawful for any person ...
to discharge or in any other manner discriminate against any employee
because such employee has filed any complaint or instituted any
or caused to be instituted any proceeding under or related to this
Act, or has testified or is about to testify in any such proceeding."
This statute has "teeth," and is interpreted broadly in favor of
employees. Recently an employee was awarded punitive damages against
an employer who retaliated.
An employer who retaliates or discriminates against an employee
in violation of this statute is potentially subject to fines or
even criminal prosecution, and the affected employee is entitled
to "legal or equitable relief ... including without limitation employment,
reinstatement, promotion, and the payment of wages lost and an additional
equal amount" plus attorneys' fees and court costs. Punitive damages
are available in appropriate cases, and "anti-retaliation" cases
may be brought against individuals as well as institutional employers.
In addition to "firing" cases, retaliation has been found when
employers blacklisted employees who made FLSA claims, refused to
hire applicants who had made FLSA claims at other jobs, fired relatives,
reduced job responsibilities, assigned employees to unpopular job
duties or shifts, disciplined employees out of proportion to past
disciplinary practices, reduced performance evaluations, and declined
to recommend "normal" raises.
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Do I have to pay the company's legal
fees if they lose the case? |
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No (except in the unlikely event a court were to decide the suit
was "frivolous"). However, if a person loses the case,
the court may make a plaintiff pay for the "costs" of
the lawsuit which are such things as the charge for copies of depositions,
etc.
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What actual financial costs or risks
are there for me to bring an FLSA case? |
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To some extent this is between the individual employee and the
attorney. If the employee hires attorneys on a contingency fee basis,
there are usually no "up front" expenses for legal fees.
However, employees may be 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.
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How do I pay my lawyers to bring an
FLSA case? |
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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.
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How long does an FLSA case take? |
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It is difficult to estimate the time for a case to be resolved.
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.
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How long do I have to bring an FLSA
claim? |
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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). 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. 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 stop the clock)
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Do all "similarly situated"
employees have to participate in an FLSA suit if one employee decides
to sue? |
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No. FLSA cases are not "class actions." An employee need
not bring or join an FLSA suit if he or she 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 he or she will not be entitled to recover
any money as a result of the suit.
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I'm
a federal employee. Am I covered by the FLSA? |
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Yes, with some differences. The FLSA applies to federal employees,
unless some specific federal statute creates different wage rules.
In addition, federal employees FLSA rights are regulated by Office
of Personnel Management, whose regulations are similar but not identical
to the DOL FLSA regulations.
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I got a severance agreement and/or signed
a waiver saying I would not sue the company. Do I still have any rights?
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Yes. Private employers may not ask their employees to sign away
their rights to minimum wages and overtime pay, even in the context
of a waiver. The rationale for this is simple. If employers could
break the law by getting their employees to agree to it, then those
conditions would be required before the employee would be hired.
This would allow the employer to avoid the FLSA's obligations. Only
waivers supervised by the DOL or obtained in a private lawsuit can
eliminate your rights.
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Where do I get more information? |
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Good 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 U.S.C. §201 et seq. There are many, many Regulations, administrative
interpretations, and judicial decisions. The U.S. DOL maintains
a website as www.dol.gov
website at Resources. Your best bet may be to contact an attorney
with experience in FLSA matters.
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