Fair Labor Standards Act Lawyer

What is the Fair Labor Standards Act?

In 1938 the United States set forth a federal law, Fair Labor Standards Act (FLSA) that set standards and established minimum wage, overtime pay, record keeping, and the child labor standards in order to protect both full-time and part-time employees.

How Should Overtime Be Paid?

Overtime is required to be paid to nonexempt employees who work more than 40 hours in a seven day work week and any time over 40 hours is considered overtime and must be paid to the employee at overtime rate. The overtime rate is the employee’s hourly wage plus the total of 50% of the employees hourly rate, also known as “time and a half”.

Overtime violations can occur when an employer does not pay the overtime wages or when an employee is being told to clock out but to continue to perform work related duties without getting paid to do so.

Overtime Schemes

Employers will attempt to scheme their way out of paying employee overtime by using different types of tactics in hopes of deceiving the employee, because the overtime laws can be difficult for others to understand without additional assistance. As an employee one should be aware of tactics that an employer might try to use to avoid overtime pay, for example an employer might try and give the employee additional days off instead of paying the overtime to the employee; paying less than full wages for anything over 40 hours per week also known as “Chinese Overtime”; reclassification of an employee’s position without a change in employee’s duties. The reclassification normally occurs when it has been brought to the employer’s attention that a overtime violation has occurred, if the employee was not receiving overtime pay, but was reclassified without the change in duties and is now receiving overtime pay, but not back overtime pay on past overtime hours this violation could be considered an overtime violation that was committed willfully.; classifying an employee as a salary employee but the employee makes less than $455.00 per work week and works more than 40 hours per work week; or an employer states the overtime was unauthorized and refuses to pay overtime pay or deletes time from the employees time card.

Protection Against Retaliation

Employees are protected under the law against an employer trying to retaliate against the employee who is making a “protected conduct” claim. The claim against an employer for an overtime violation falls under the “protected conduct”. So with this protection for the employee the employer may not fire, demote, or discriminate in anyway against an employee who has claimed to have been a victim of an overtime violation. If an employer commits retaliation against the victim, the act of retaliation can lead to a retaliation claim in addition to the overtime claim.

Who Is Covered By the Fair Labor Standards Act?

Employees of enterprises with at least two employees have annual sales or business of at least $500,000.00; hospitals, businesses that provide medical and/or nursing care for residents; schools and preschools; and/or government agencies are covered by the enterprise coverage under the Fair Labor Standards Act.

Employees who are employed where enterprise coverage is nonexistent and the employee is involved in the production of goods for commerce or engage in commerce are covered under the Fair Labor Standards Act by the individual coverage. The use and/or assembly of goods that are transported from state to state and/or communicating from state to state falls under interstate commerce which entitles employees who are considered assembly workers, secretaries, janitors, cooks, and housekeepers to be covered under the individual coverage of the Fair Labor Standards Act. The decision of coverage is not based off of job title but rather job description. Calling a secretary an administrative assistant does not exempt the employee from coverage and calling a CEO a janitor does not make the employee non-exempt.

An employee who makes more than $100,000.00 per year is almost always exempt from coverage under the Fair Labor Standards Act. In cases where an employee makes less than $100,000.00 a year to be considered exempt the employee must be paid at least $23,000.00; be paid on a salary basis; and perform exempt job duties, which include executive job duties, professional job duties, and administrative job duties.

Executive job duties that are considered to fall under the exemption are employees who regularly supervise two or more other employees; has management as their primary duty; and has some input on hiring, firing, promoting, and assignments of other employees.

Professionally exempt work is work that requires specialized education and involves exercise of discretion and judgment. Professional job duties that fall under this description and are considered to be “traditional professionals” are those of lawyers, doctors, dentists, teachers, architects, registered nurses, engineers with an engineering degree or equivalent, pharmacist, and to include those employees who perform work that is required to have “advanced knowledge”. Along with the “traditional professionals” employees who are actors, musicians, composers, writers, cartoonists, and some journalist fall under “creative professionals” which make them exempt from coverage under Fair Labor Standards Act.

Administrative job duties that are exempt fall under the Regulatory definition which states job duties that are office or non-manual work which is directly related to management; general business operations of the employer or employers customers; and the administrative employee is a primary component that exercises independent judgment and discretion about matters of significance.

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