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Fair Labor Standards Act Information

Auditor of Dept. of Labor

Provides for a minimum wage, requires time and one half the employee's regular rate of pay after 40 hours in a work week, establishes standards for the employment of persons under the age of 18, contains within it the "Equal Pay Act" (enforced by EEOC usually through contracts with state civil right agencies).
The act provides for exemptions from some of its provisions. The monetary provisions of the statute were developed as a device to spread employment and establish a floor on wages as a result of the experience of the depression. Thus, exemptions are applied very conservatively: an employer does not get the benefit of a generous interpretation where an exemption is at issue and an employee may not waive entitlement under the statute. Exemptions from some or all of the act's provisions or employment subject to special provisions that impact significant numbers of the workforce include: agricultural workers, employees of hospitals and residential care establishments (nursing homes, group homes), tipped employees, employees of state and local governments, executive, administrative, professional and outside sales employees. These exemptions are defined by statute or regulation very specifically. Assume nothing.

Liability for failure to comply with the act: two year statute of limitations except three years in the case of "willful violation"; back wages plus an equal amount as liquidated damages, attorney's fees and court costs. Civil money penalties for child labor violations.

Hours worked:
all hours "suffered or permitted" to be worked. Travel time in the nature of home-to-work is not hours worked, however, travel time is compensable when it occurs within an employee's duty period. See "Interpretative Bulletin, Part 785: Hours worked under the Fair Labor Standards Act".

Regular rate of pay:
must be drawn from what happens under the employment contract, the rate actually paid the employee for the normal non-overtime workweek. If an employee's salary is subject to deduction on account of hours worked, the employee's regular rate is computed by dividing the salary by the number of hours which the salary is intended to compensate. If the employee's hours fluctuate but the salary does not, the employee's regular rate is calculated by dividing the weekly equivalent of the salary by the hours worked. Supplements to pay such as commission payments, production bonuses, and sums paid for waiting time are included in the regular rate of pay (they increase the rate by dividing the payment by the total hours worked over the period covered by the payment). See "Regulations, Part 778: Interpretative Bulletin on Overtime Compensation".

Record Keeping: employers are required to keep an accurate record of each employees' daily hours worked, total weekly hours, rate of pay, straight time pay, overtime pay, total earnings, date of payment and pay period covered by the payment, employee name, address, social security number, date of birth if under 18, sex, occupation in which employed. The burden of record keeping is on the employer.

The Wage-Hour Division, U.S. Department of Labor, has available a variety of publications that are occupational or industry specific that are free in reasonable quantity. These same publications are available from the Government Printing Office for a fee. The Division has such a small staff and so many responsibilities that they are not looking for employers to investigate, they have all the work they can handle from complaints and investigations directed to address industry specific problems. You are not obligated to identify the firm you are seeking information for or about. The questions asked by staff are designed to assist them in identifying your needs.


We agree. The employee requested it. The employee didn't want overtime.

An employee cannot waive the statute. The employment relationship is a lot like a marriage. When you are together, and all is well, accommodations are made. When you separate, things can get nasty. If the Department of Labor conducts an investigation, it usually examines your employment practices for all employees. A complaint need not have been filed, and if a complaint was filed, you are not entitled to know who filed it or what was alleged. The fact that any employee is alleged to be a liar, a cheat, or a porno movie star is irrelevant if there is evidence that the employee was not paid properly.

Salaried employees do not receive overtime.
There is no exemption from overtime solely on the basis of salaried compensation. There is an exemption from minimum wage and overtime for bona fide Executive, Administrative, and Professional employees who meet very specific duty and salary tests. Reference the nontechnical publication "Executive, Administrative, Professional and Outside Sales Exemptions Under the Fair Labor Standards Act: "or the more detailed, "Regulations Part 541: Defining the Terms "Executive, " and "Administrative," "Professional" and "Outside Salesman"".

The employee volunteered to work the time. The employee did it on his/her own.

All work time "suffered or permitted" must be recorded and paid for. It is the employer's responsibility to control the hours worked by its employees. It is not necessary that the employee receive the employer's permission or approval.

Overtime for Saturday, Sunday or for hours over 8 in a day.

Not required by the Fair Labor Standards Act, or any federal government contract statute. If you have promised, or have had a practice of paying overtime under these circumstances, you may have a contract or other agreement which obligates you to a higher standard.

The salary includes overtime.

As a practical matter a fixed sum cannot include overtime compensation when the weekly hours fluctuate. Editorial note: There is a concept called a "Belo Contract" which has such restrictive provisions that employers attempting to implement such an agreement inevitably fail and find that virtually all of the monies paid are treated as straight time wages. Attorneys who recommend the use of this provision expose their client to grief and unanticipated liabilities.

"Time off plans", "comp time" in lieu of overtime.

Excepting employees of state and local governments, an employee must be paid in full at the conclusion of each pay period. Thus, the records must show the payment of straight time for the actual straight time hours and time and one half for the overtime hours worked. For example, bi-weekly pay period:

Week 1
40 hours X $4.00 = $160.00
2 hours X $6.00 = $12.00

Week 2
37 hours X $4.00 = $148.00
Total: $320.00

An employer cannot "save" an employee's overtime wages for payment in a later pay period.

The employer neglected to keep an accurate record of hours worked for an employee not exempt from minimum wage or overtime.

The obligation to keep an accurate record is the employer's. If the employer neglects to fulfill this responsibility the employer will not prevail in a claim that an accurate determination of liability cannot be ascertained (and therefore no liability exists). We all remember the times we worked when it was burdensome, but do not recall clearly those times when we did not work. Thus, it is to the employer's benefit to maintain an accurate record of hours worked, even when it believes it has no obligation to maintain such a record because of an exemption.


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