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Fair Labor Standards Act (FLSA)
Wage and Hour Law
The Fair Labor Standards Act (FLSA) is a Federal law that protects employees and guarantees that employees are paid a minimum wage, and if they are not exempt, requires payment of overtime for all hours worked in excess of 40 hours during a work week. The FLSA also applies to all States. The Fair Labor Standards Act provides requirements that employers must follow for their employees regarding overtime, minimum wage, and various other employment issues. The FLSA law controls those employers and employees in the private sector, federal, state and local governments. Effective July 24, 2009 Federal minimum wage is $7.25 per hour and as of June 1, 2011 the Florida minimum wage is $7.31. Although the Federal minimum wage is less than Florida, Florida employees must be paid the Florida minimum wage.
The Fair Labor Standards Act governs minimum wages and overtime and the exemptions to those provisions control and include how employees are paid, how often employees are paid, how employers pay bonuses, room and board and gifts. It also governs deductions from pay which would reduce an employee’s wages to below minimum wages
As a general rule, employees should receive overtime pay at a rate no less than time-and-a-half their regular rate for every hour worked in excess of 40 in a single workweek. However, please be aware that there are exemptions to this rule. Under the Fair Labor Standards Act, a workweek is defined as a fixed, recurring period of 168 hours, or seven consecutive 24-hour periods. Therefore, a workweek doesn’t have to start on Monday and end on Sunday. For example, the workweek could begin on a Wednesday at 4:30pm.
It is also possible for the employer to define different workweeks for different divisions or groups of workers in the company. However, the seven consecutive 24 hour period still applies to all employees. It is also important to note that employers are not permitted to average the number of hours worked by an employee over two or more workweeks. If a non-exempt employee works 45 hours one week and 35 hours the next week, that employee is due 5 hours of overtime.
The Fair Labor Standards Act provides that if an employee makes a successful claim for overtime in Federal Court, the employer is responsible for the employee’s attorneys’ fees and costs concerning any monies recovered on the claim. This enables employees who are owed a few hundred or a few thousand dollars to obtain legal representation without the expense of advancing litigation costs or fees, and without those fees and costs ultimately coming out of the wages recovered from the employer. At Vassallo, Bilotta, Friedman & Davis, our representation of employees is on a contingency fee basis. This means that if we are not successful in securing the employee overtime wages, then we don’t get paid a fee.
To be covered under the Fair Labor Standards Act you must be an employee. Independent contractors are not covered. The law looks at the relationship between the parties to determine whether or not you are an independent contractor. Simply entering into an independent contractor agreement with your employee or employer or providing a 1099 form as opposed to a W-2 statement at the end of the year, does not necessarily define the worker as an independent contractor under the law. Employer is defined as “any person acting directly or indirectly in the interest of an employer in relation to an employee”. Therefore, a supervisor or owner of the business, if they actively participate in the business, will be considered an employer under the Fair Labor Standards Act and will be held personally responsible for an employee’s wages.
If you are an employee, and are not exempt, when you work more than 40 hours per week you are entitled to overtime premium pay whether you are paid on an hourly basis, weekly, day rate, piece rate or commission basis. It is also unlawful for an employer to retaliate against or intimidate an employee for exercising their rights under the Fair Labor Standards Act. An employee who complains to a supervisor or the employer about not receiving minimum wage, overtime or back pay can’t be fired, demoted, or retaliated against.
The Fair Labor Standards Act is an extremely complex area of the law with many exemptions to the general rule and then exceptions to those exemptions. Whether you’re an employer or an employee, if you have any questions regarding the Fair Labor Standard Act and whether overtime is due, please contact us for a free consultation. Our firm has successfully defended overtime claims on behalf of employers who paid their employees properly. We have also successfully pursued overtime benefits for employees that were not paid properly. Our firm has the experience and ability to represent mulitple employees in collective actions, which are similar to a class actions but the employee must affirmatively opt-in to become part of the class and obtain wages that are owed. Whatever your situation may be, please let us know if we can help protect your rights under the law.