Fair Labor Standards Act (FLSA)

What is the Fair Labor Standards Act?

In 1938 the U.S. Congress enacted the Fair Labor Standards Act (FLSA) which requires an employer to pay a non-exempt employee, overtime pay if the employee works more than 40 hours per week. The rate of overtime pay is one and one-half times the employee’s regular rate of pay.

An Illinois employer may violate the FLSA in different ways. For example:

  • By improperly calculating the rate at which overtime is paid
  • By failing to properly count time that an employee works.  The employer does this by making employees perform work off the clock.  The employer may not count pre-shift or post-shift activities.
  • By claiming an employee is exempt from being paid overtime because they are a salaried employee.   Simply because an employee is salaried does not mean that they should not be receiving overtime pay.

In overtime cases an employer must prove that the employee is entitled to overtime pay. The employee does not have to prove that hey would be entitled to overtime pay. An employee’s job duties and not their title will determine whether the employee is entitled to overtime pay.

Even if an exempt employee is required to perform the duties of a non-exempt position, the exempt employee would  be entitled to overtime pay for the hours worked.

State laws can provide benefits that are in addition to the benefits provided under the FLSA. For example, some states require employees who are not covered by the FLSA to be paid overtime compensation. In addition, some states require that overtime be calculated at higher rates than the FLSA.Special rules apply to municipal employees who work at the federal and state levels of government.  Firefighters and police officers fall into this category.
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