FLSA

Basic Wage Standards
FLSA covered, nonexempt workers are entitled to a minimum wage of not less than $5.85 per hour effective July 24, 2007; $6.55 per hour effective July 24, 2008; and $7.25 per hour effective July 24, 2009.  Special provisions apply to workers in American Samoa and the Commonwealth of the Northern Mariana Islands. Nonexempt workers must be paid overtime pay at a rate of not less than one and one-half times their regular rates of pay after 40 hours of work in a workweek.

Wages required by FLSA are due on the regular payday for the pay period covered. Deductions made from wages for such items as cash or merchandise shortages, employer-required uniforms, and tools of the trade, are not legal to the extent that they reduce the wages of employees below the minimum rate required by FLSA or reduce the amount of overtime pay due under FLSA.

Things Not Covered By FLSA
The FLSA contains some exemptions from these basic standards. Some apply to specific types of businesses; others apply to specific kinds of work.  While FLSA does set basic minimum wage and overtime pay standards and regulates the employment of minors, there are a number of employment practices which FLSA does not regulate.

For example, FLSA does not require:
(1) vacation, holiday, severance, or sick pay;
(2) meal or rest periods, holidays off, or vacations;
(3) premium pay for weekend or holiday work;
(4) pay raises or fringe benefits; or
(5) a discharge notice, reason for discharge, or immediate payment of final wages to terminated employees.

The FLSA does not provide wage payment or collection procedures for an employee’s usual or promised wages or commissions in excess of those required by the FLSA. However, some States do have laws under which such claims (sometimes including fringe benefits) may be filed.

Also, FLSA does not limit the number of hours in a day or days in a week an employee may be required or scheduled to work, including overtime hours, if the
employee is at least 16 years old.

Things not covered by the FLSA are still subject to agreement between the employer and the employees or their authorized representatives, such as their unions.

Who is Covered By The FLSA?
All employees of certain enterprises having workers engaged in interstate commerce, producing goods for interstate commerce, or handling, selling, or otherwise working on goods or materials that have been moved in or produced for such commerce by any
person, are covered by FLSA.

A FLSA covered enterprise is the related activities performed through unified operation or common control by any person or persons for a common business purpose and
(1) whose annual gross volume of sales made or business done is not less than $500,000 (exclusive of excise taxes at the retail level that are separately stated); or
(2) is engaged in the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, or the mentally ill who reside on the premises; a school for mentally or physically disabled or gifted children; a preschool, an elementary or secondary school, or an institution of higher education (whether operated for profit or not for profit); or (3) is an activity of a public agency.

Any enterprise that was covered by FLSA on March 31, 1990, and that ceased to be covered because of the revised $500,000 test, continues to be subject to the overtime pay, child labor and recordkeeping provisions of FLSA.

Employees of firms which are not covered enterprises under FLSA still may be subject to its minimum wage, overtime pay, recordkeeping, and child labor provisions if they are individually engaged in interstate commerce or in the production of goods for interstate commerce, or in any closely-related process or occupation directly essential to such production.

Such employees include those who: work in communications or transportation; regularly use the mails, telephones, or telegraph for interstate communication,
or keep records of interstate transactions; handle, ship, or receive goods moving in interstate commerce; regularly cross State lines in the course of employment; or work for independent employers who contract to do clerical, custodial, maintenance,
or other work for firms engaged in interstate commerce or in the production of goods for interstate commerce.

Domestic service workers such as day workers, housekeepers, chauffeurs, cooks, or full-time babysitters are covered if:
(1) their cash wages from one employer in calendar year 2007 are at least $1,500 (this calendar year threshold is adjusted by the Social Security Administration each year); or (2) they work a total of more than 8 hours a week for one or more employers.

Tipped Employees
Tipped employees are individuals engaged in occupations in which they customarily and regularly receive more than $30 a month in tips. The employer may consider tips as part of wages, but the employer must pay at least $2.13 an hour in direct wages.
The employer who elects to use the tip credit provision must inform the employee in advance and must be able to show that the employee receives at least the applicable minimum wage (see above) when direct wages and the tip credit allowance are combined.

If an employee’s tips combined with the employer’s direct wages of at least $2.13 an hour do not equal the minimum hourly wage, the employer must make up the difference. Also, employees must retain all of their tips, except to the extent that they participate in a valid tip pooling or sharing arrangement.

Subminimum Wage Provisions
The FLSA provides for the employment of certain individuals at wage rates below the statutory minimum.  Such individuals include student-learners (vocational education students), as well as full-time students in retail or service establishments, agriculture,
or institutions of higher education. Also included are individuals whose earning or productive capacity is impaired by a physical or mental disability, including those related to age or injury, for the work to be performed.  Employment at less than the minimum wage is authorized to prevent curtailment of opportunities for employment. Such employment is permitted only under certificates issued by Wage-Hour.

Exemptions
Some employees are exempt from the overtime pay provisions or both the minimum wage and overtime pay provisions.  Because exemptions are generally narrowly defined under FLSA, an employer should carefully check the exact terms and conditions for each. Detailed information is available from local Wage-Hour offices.
Following are examples of exemptions which are illustrative, but not all-inclusive. These examples do not define the conditions for each exemption.

FLSA Exemptions from Both Minimum Wage and Overtime Pay
(1) Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondaryschools), outside sales employees, and employees in certain computer-related occupations(as defined in Department of Labor regulations);
(2) Employees of certain seasonal amusement or recreational establishments, employees of certain small newspapers, seamen employed on foreign vessels, employees engaged in fishing operations, and employees engaged in newspaper
delivery;
(3) Farmworkers employed by anyone who used no more than 500 “man-days” of farm labor in any calendar quarter of the preceding calendar year;
(4) Casual babysitters and persons employed as companions to the elderly or infirm.

Exemptions from Overtime Pay Only
(1) Certain commissioned employees of retail or service establishments; auto, truck, trailer, farm implement, boat, or aircraft sales-workers; or parts-clerks and mechanics servicing autos,trucks, or farm implements, who are employed by non-manufacturing establishments primarily engaged in selling these items to ultimate purchasers;
(2) Employees of railroads and air carriers, taxi drivers, certain employees of motor carriers, seamen on American vessels, and local delivery employees paid on approved trip rate plans;
(3) Announcers, news editors, and chief engineers of certain non-metropolitan broadcasting stations;
(4) Domestic service workers living in the employer’s residence;
(5) Employees of motion picture theaters; and
(6) Farmworkers.

Partial Exemptions from Overtime Pay
(1) Partial overtime pay exemptions apply to employees engaged in certain operations on agricultural commodities and to employees of certain bulk petroleum distributors.
(2) Hospitals and residential care establishments may adopt, by agreement with their employees, a 14-day work period instead of the usual 7-day workweek if the employees are paid at least time and one-half their regular rates for hours worked over 8 in a day or 80 in a 14-day work period, whichever is the greater number of overtime
hours.
(3) Employees who lack a high school diploma, or who have not attained the educational level of the 8th grade, can be required to spend up to 10 hours in a workweek engaged in remedial reading or training in other basic skills without receiving time and one-half overtime pay for these hours. However, the employees must receive their normal wages for hours spent in such training and the training must not be job
specific.
(4) Public agency fire departments and police departments may establish a work period ranging from 7 to 28 days in which overtime need only be paid after a specified number of hours in each work period.

Recordkeeping
The FLSA requires employers to keep records on wages, hours, and other items, as specified in Department of Labor recordkeeping regulations.  Most of the information is of the kind generally maintained by employers in ordinary business practice and in
compliance with other laws and regulations. The records do not have to be kept in any particular form and time clocks need not be used. With respect to a employee subject to the minimum wage provisions or both the minimum wage and overtime pay provisions, the following records must be kept:
(1) personal information, including employee’s name, home address, occupation, sex, and birth date if under 19 years of age;
(2) hour and day when workweek begins;
(3) total hours worked each workday and each workweek;
(4) total daily or weekly straight-time earnings;
(5) regular hourly pay rate for any week when overtime is worked;
(6) total overtime pay for the workweek;
(7) deductions from or additions to wages;
(8) total wages paid each pay period; and
(9) date of payment and pay period covered.

Records required for exempt employees differ from those for nonexempt workers. Special information is required for homeworkers, for employees working under uncommon pay arrangements, for employees to whom lodging or other facilities are furnished, and for employees receiving remedial education.

If you believe your employer, or former employer is violating the FLSA, contact us at (888)OVERTIME or click here for a free consultation today.