If you have time to give us more detailed information, please use the link below.

Submit Your Case


Quick Links

FAQ's


• What is the FLSA?
• What is "overtime?"
• At what rate must overtime be paid?
• Does it matter that I did not "put in for" or seek prior approval for the time spent performing work activities?
• Does it matter that I never reported the time or asked for overtime?
• I am classified as an independent contractor. Am I entitled to overtime pay?
• How do I prove that my employer knew or had reason to believe that off the clock work was being performed?
• How do I prove the amount of time spent doing off-the-clock compensable activities?
• I get "compensatory time" ("Comp. Time") instead of cash for overtime. Is this allowed?
• What are liquidated damages?
• Does leave time count as work time?
• What activities are considered "work?"
• I already get overtime. Does the FLSA apply to me?
• What is the work week standard?
• How do I enforce my FLSA rights?
• How do I bring an FLSA lawsuit?
• What do I get if I win?
• Won't my employer just fire me if I sue them for unpaid wages or overtime?
• Do I have to pay the company's legal fees if they lose the case?
• What actual financial costs or risks are there for me to bring an FLSA case?
• How do I pay my lawyers to bring an FLSA case?
• How long does an FLSA case take?
• How long do I have to bring an FLSA claim?
• Do all "similarly situated" employees have to participate in an FLSA suit if one employee decides to sue?
• I'm a federal employee. Am I covered by the FLSA?
• I got a severance agreement and/or signed a waiver saying I would not sue the company. Do I still have any rights?
• Where do I get more information?

What is the FLSA?

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).

Return To Top


What is "overtime?"

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.

Return To Top


At what rate must overtime be paid?

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.

Return To Top


Does it matter that I did not "put in for" or seek prior approval for the time spent performing work activities?

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.

Return To Top


Does it matter that I never reported the time or asked for overtime?

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.

Return To Top


I am classified as an independent contractor. Am I entitled to overtime pay?

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.

Return To Top


How do I prove that my employer knew or had reason to believe that off the clock work was being performed?

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.

Return To Top


How do I prove the amount of time spent doing off-the-clock compensable activities?

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.

Return To Top


I get "compensatory time" ("Comp. Time") instead of cash for overtime. Is this allowed?

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.

Return To Top


What are liquidated damages?

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.

Return To Top


Does leave time count as work time?

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.

Return To Top


What activities are considered "work?"

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.

Return To Top


I already get overtime. Does the FLSA apply to me?

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.

Return To Top


What is the work week standard?

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.

Return To Top


How do I enforce my FLSA rights?

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.

Return To Top


How do I bring an FLSA lawsuit?

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.

Return To Top


What do I get if I win?

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.

Return To Top


Won't my employer just fire me if I sue them for unpaid wages or overtime?

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.

Return To Top


Do I have to pay the company's legal fees if they lose the case?

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.

Return To Top


What actual financial costs or risks are there for me to bring an FLSA case?

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.

Return To Top


How do I pay my lawyers to bring an FLSA case?

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.

Return To Top


How long does an FLSA case take?

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.

Return To Top


How long do I have to bring an FLSA claim?

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)

Return To Top


Do all "similarly situated" employees have to participate in an FLSA suit if one employee decides to sue?

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.

Return To Top


I'm a federal employee. Am I covered by the FLSA?

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.

Return To Top


I got a severance agreement and/or signed a waiver saying I would not sue the company. Do I still have any rights?

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.

Return To Top


Where do I get more information?

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.

Return To Top

Copyright 2010 Lee & Braziel, All rights reserved. | Website by Bkali.com