Frequently asked questions about the Fair Labor Standards Act

1. What is the Fair Labor Standards Act?
The Fair Labor Standards Act (FLSA) was enacted by the U.S. Congress in 1938 that requires employers to pay overtime pay to non-exempt employees at the rate one-one half times their regular rate of pay when an employee workers over 40 hours in a week

2. How is overtime required to be calculated?
For every hour an employee works over 40, overtime is one and one-half times their regular rate of pay. If an employee is making $10 and hour their over time rate would be $15.   Included in the regular rate of pay are work-related payments that are made for overtime work such as shift differentials, bonuses, longevity pay, educational incentive pay, etc.

3. Does overtime have to be paid in cash?
Most employees must be paid cash for overtime unless they are municipal employees who may receive compensatory time instead of cash.   In certain situations, employees may deduct the reasonable value of lodging or meals.

4. When must overtime be paid?
Compensation for overtime must be paid at the same time regular pay is received by the employee.

5. Are there special rules for “tipped employees”?
Yes, the employer is permitted to pay tipped employees a “cash wage of only one-half the 1996 minimum wage ($4.25).  This means employers can pay tipped employees a cash wage of $2.12 an hour, and it may credit tips to make up the rest of minimum wage.

6. Are there specific industries that violate the FLSA more than others?
It is extremely common in the food and beverage industry, grocery industry and other food preparation industries for employers to violate the provisions of the FLSA.

7.  Does travel time count as overtime work?
Travel during working hours while conducting business would count towards overtime. However, home to work travel and vice a versa, would not.

8.  When does training time count as overtime work?
Attending a training session, company meeting or lecture would be considered a work activity unless the following exceptions apply: 1) Attendance is outside the employee’s regular work hours; 2) Attendance is voluntary; 3) The course is not directly related to the employee’s job; and 4) The employee does not perform any productive work while attending the lecture.

9.  Do bonuses count as overtime pay?
Bonus money cannot be considered overtime pay unless it is tied to each hour worked by the employee.

10. When does an employer have to pay for break time?
A break is considered compensable of it is 20 less.  A break lasting longer than 20 may be compensable under certain circumstances.

11. Can a manager or supervisor ever be entitled to overtime wages?
It depends on the type of work the supervisor is performing.  If the supervisor spends a substantial amount of time doing the same type of work his employees are doing, they he could qualify for overtime pay.

12.  Are salaried employees entitled to overtime wages?
Some salaried employees can receive overtime if their job or position is considered non-exempt under the FLSA.

13. Can an employer and employee agree to waive overtime pay?
An employer will always be legally obligated to pay overtime pay to a non-exempt employee if the employee works more than 40 hours per week.   Even if an agreement exists, not to pay overtime, between the employer and the employee an employer who is caught violating the overtime laws will not avoid back payments by cutting a deal directly with employees.

14.  Can I recover any damages in addition to my unpaid overtime?
Under the FLSA,  if it is found that your employer intentionally did not pay overtime pay,  you could receive double the amount of your owed overtime pay as damages.  You may also be awarded interest on the unpaid wages in addition to attorney’s fees and costs.

15. How far back can damages be obtained?
Most claimants can go back two years to recover overtime pay. However, if it is found that your employer intentionally violated the law you could go back as far as three years to recover overtime pay.

16.  How do employees prove damages? 
Under the FLSA, your employer is required to keep accurate payroll records. If the employer fails to keep accurate records, the courts will look to the employee to provide reasonable estimates of the hours worked. This is done through testimony and written documentation

17. If I believe I am entitled to overtime wages, should I hire an attorney?
Overtime wage claim laws are very complex.  Only an attorney experienced in this area of the law will be able to “cut through the red tape” and secure a full and quick recovery of your overtime wages.Remember! Your employer is required to pay your attorney’s fees and costs.

18.  How much does it cost to hire a lawyer to file an overtime wage claim?
If the courts find that your employer owes you overtime wages, the FLSA provides for the awarding of attorney’s fees and costs. You do not have to pay anything.

19. How long does it take to resolve an overtime wage claim?
Many claims for overtime wages can be settled quickly.  However, if a lawsuit needs to be filed, an overtime claim can take anywhere from several months to a year to resolve.

20. What happens if my employer retaliates against me for filing an overtime wage claim?
It is illegal under the FLSA for your employer to retaliate against you for filing an overtime wage claim. The court can order your employer from taking any adverse job action against you for filing such a claim.