The Fair Labor Standards Act (FLSA)

The Fair Labor Standards Act (FLSA) was initially passed in 1938 and has been amended many times since that year. The law sets the minimum wage and regulates overtime pay and child labor. There are no provisions in the law for vacation, holiday, severance or sick pay; meal or rest periods; mandatory time off for holidays or vacations; premium pay for weekend or holiday work; pay raises or fringe benefits; or discharge notice, reasons for discharge, or immediate payment of final wages to a terminated employee. These items are either granted (or not granted) by an employer, negotiated in a collective bargaining agreement with a union, or the subject of state law.

Private and public sector employees are covered, but executive, administrative and professional employees are exempted from coverage of the overtime and minimum wage provisions. Employees of seasonal amusement or recreational businesses, casual babysitters, and outside salespersons are also exempted from the overtime and minimum wage protections. Highly paid commissioned inside salespersons, taxi drivers, some transportation employees, domestic workers, movie theater employees and farmworkers are not covered by the overtime provisions of the law. For questions about coverage call the Wage and Hour Division of the U.S. Department of Labor (1-866-4USWAGE/1-866-487-9243).

The minimum wage is currently $5.15 per hour. When the law was initially passed in 1938, the minimum wage was $.25. Worktime may include preparatory and concluding activities; meal periods too short for personal pursuits (less than 30 minutes) or not free of duties; rest periods less than 20 minutes; travel time within the work day (not to and from work); waiting time or on call time if the worker’s freedom is restricted; sleeping time if sleep is interrupted on a regular basis; and training time to improve job skills or to keep the job. Subminimum wages are allowed for certain disabled workers and some students who are learning a trade for credit.

Overtime pay is one and one half times the regular rate of pay for all hours worked in excess of 40 hours per week. The regular rate of pay includes wages, salaries, commissions or piece rates; incentive bonuses; shift premiums; cost of living allowances; and hazard pay. Excluded from the regular rate of pay are premium pay for working weekends and holidays; pay for time not worked (vacations, sick leave and holidays); contributions to pensions and insurance; gifts; discretionary bonuses; profit-sharing; and contributions to savings plans. All hours that were “suffered or permitted” to be worked are counted towards overtime. An employer cannot argue after the fact that the overtime was not authorized if it was knowingly allowed at the time. In the public sector, compensatory time is allowed in lieu of payment for overtime.

The rules for child labor are divided between farm work and non-farm work. For non-farm work, children under the age of 14 can deliver newspapers; work for parents in solely owned business (but not in manufacturing or hazardous jobs); and may perform for radio, TV, movies, and theater. From age 14-16, children are allowed to work n non-hazardous jobs outside of school hours for 3 hours on a school day, 18 hours in a school week, 8 hours on a non-school day, and 40 hours in a non-school week, from 7:00 A.M. – 7:00 P.M. (until 9:00 P.M. from June 1 – Labor Day). From 16-17, children may work in any non-hazardous job for unlimited hours. Above age 17, work is unrestricted (above age 15 for farm work). For farm work, 14-15 year olds may perform any non-hazardous job outside school hours. Children age 12-13 may perform any non-hazardous job outside school hours with a parent’s consent on the parent’s farm. Under age 12, the same conditions apply as to 12-13 year olds, if the farm employs minimal farm labor (less than 500 “man-days” in any calendar quarter).

The law is enforced by the Wage and Hour Division of the Department of Labor (the Office of Personnel Management for federal employees) or employees can file their own lawsuits. You can collect back wages and an equal amount of damages, plus attorney fees and court costs. The court can also enjoin the shipment of good across state lines made in violation of the Act or seize goods produced in violation of the Act or seize goods produced in violation. The civil penalties for willful or repeated violations of minimum wage and overtime provisions are $1,000 per violation. For child labor violations the civil penalty is $10,000 per child. There are also criminal penalties for willful violations – a fine up to $10,000 for a first offense and imprisonment for up to 6 months for a second offense. The burden of proof is on the employee, but the employer must keep and produce records. The statue of limitations is 2 years (3 years for a willful violation).

Discrimination for filing a complaint is illegal.

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