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FAQ: The Fair Labor Standards Act (FLSA), Wage Laws, and Employee Rights

In the U.S., there are state and federal laws that protect employees. These laws apply to full-time and part-time workers. One of the key protections these laws provide is ensuring employees receive fair wages for their work.

The Fair Labor Standards Act of 1938 (FLSA) is an important federal wage and hour law affecting full-time and part-time workers in the private sector and public sector workers in federal, state, and local governments. The FLSA sets standards for several employee rights, including:

  • Minimum wage pay
  • Overtime pay
  • Child labor
  • Employer recordkeeping
  • Breaks for nursing mothers

The law also specifies the conditions under which some employees are exempt from its requirements.

This article answers common concerns regarding FLSA, wage laws, and employee rights. Learn more about what these rights are and how they apply to you and your work.

FAQ Table of Contents

FLSA Requirements: Employees

How do I know if my employer falls under the FLSA?

A: The FLSA protects nonexempt employees. The easiest way to know if you're a nonexempt employee is to ask if your employer pays you hourly or salary. The general rule is that the FLSA covers hourly workers. However, the law offers a three-part test to determine if you are a nonexempt worker.

To be a nonexempt employee, you must satisfy a 3-part test:

  • Salary Level Test: You earn less than $35,568 annually ($684 per week).
  • Salary Basis Test: Your employer pays you by the hour rather than by salary. This means that your company only pays you for the number of hours you work. You do not receive a guaranteed amount each pay period.
  • Duties Test: You do not perform management activities. A good rule of thumb is deciding who is in charge. If you are in charge during a given shift, then the FLSA likely doesn't apply.

In short, FLSA protections apply to hourly (nonexempt) workers, not salaried (exempt) employees.

Which jobs do not receive overtime under the FLSA?

A: You can determine whether your employer must pay overtime using the above-mentioned three-part test.

Typical jobs that are not entitled to overtime include:

  • Independent contractors
  • Volunteers
  • Computer specialists
  • Outside salespeople
  • Babysitters and other informal personal companions
  • Amusement park employees
  • Newspaper deliverers
  • Small farm employees

If you don't fall into any of these categories, there's a good chance your employer must pay overtime.

Q: I am an independent contractor. My employer is not living up to our agreement regarding pay. Can I file a claim under the FLSA?

A: No. The FLSA does not cover independent contractors. Some states, such as New York, have independent contractor laws on the books, so state law might be a possibility. If you disagree with your employer and are an independent contractor, you might have a breach of contract claim, not an employment law claim. An attorney experienced in employment law and labor law can provide more information.

Q: Does the FLSA cover tipped employees?

A: Yes. The FLSA has several rules on tipped employees. While federal law mandates a minimum hourly wage of $7.25 for employees, employers can pay workers who receive tips $2.13 an hour and claim a tip credit for the tips given to employees to make up the balance of the applicable minimum wage requirement. You should check state law as many states have their own minimum wage requirements, while others do not allow the tip credit. 

For example, California law requires employers to pay minimum wage even when employees receive tips. Other states require a wage somewhere in between—morethan $2.13 an hour but less than the state or federal minimum wage.

If an employer claims the tip credit, the employer must make sure the employee receives enough customer gratuities and cash wages in a workweek to equal the required minimum wage and overtime compensation.

The tipped employee owns their tips, and the employer may not take any portion of them. Tip pooling, which is the practice of sharing tips, is permitted.

Q: Can minors work under FLSA?

A: In addition to minimum wage, overtime pay, and exemptions, the FLSA sets child labor standards, including minimum age requirements for employment. Once a youth reaches 18 years of age, the federal youth employment provisions no longer apply to them. However, the law restricts minors under 18 in the job types they can perform and the number of hours they can work.

You should check state law as some states have additional child labor regulations.

FLSA Requirements: Wages and Benefits

Q: What is the federal minimum wage?

A: The federal minimum wage in 2023 is $7.25 an hour, a rate unchanged since 2009. Some argue for an increase in this federal level. Many states and some local governments have enacted minimum wage laws. States have been quite active in this area, with just about every state mandating a higher minimum wage than required under federal law. If a state or local government has a higher minimum wage, employers must pay the higher wage.

Q: Are employers obligated to provide salary increases?

A: Salary increases are not mandated by federal law. You and your employer negotiate pay raises. Federal law does not require employers to give them.

Q: Do I earn more for working after hours or on weekends?

A: Compensation for night shifts or weekend duties is not compulsory under the FLSA but may be part of a separate agreement between you and your employer. The FLSA does mandate, however, that eligible employees receive overtime pay at a rate of one and a half times their regular pay for hours worked beyond 40 in a workweek.

Q: What is the procedure for calculating and paying out vacation, sick, and holiday pay?

A: The FLSA has no provisions requiring employers to offer paid time off for holidays, vacations, or illness. These types of compensation are subject to negotiation between the employee and employer.

Q: Is there a federal legal requirement to provide meal or rest breaks?

A: Federal law does not require breaks or meal periods unless you're a minor. However, the FLSA requires nursing mothers to be provided reasonable break time to express breast milk. Some states have requirements for meal and rest breaks.

When employers offer short breaks (usually 15 minutes), federal law considers the breaks as compensable work hours. Your employer must include these breaks in your work week. They must also include these hours for overtime purposes.

Q: Must employers conduct regular performance reviews?

A: Routine performance assessments are not a requirement under the Fair Labor Standards Act. Whether to conduct performance evaluations is typically decided by your employer.

Q: I didn't get my last paycheck. What can I do?

A: While federal law doesn't mandate immediate payout of the the last paycheck after employment ends, state laws might. If the expected date for the final paycheck has lapsed without payment, you should contact the Wage and Hour Division of the Department of Labor or your local labor department. The DOL also offers services to assist in retrieving unpaid wages.

FLSA Requirements: Overtime and Work Hours

Q: What are the FLSA's overtime pay requirements?

A: The FLSA has overtime requirements. Employers must pay nonexempt workers 1.5 times their regular rate of pay for all hours over 40 worked in a workweek. For example, imagine that your regular rate of pay is $15/hr. You work 50 hours in a given week. Your employer must pay $22.50/hour for the extra 10 hours of work.

In addition to the FLSA, most states have labor laws concerning wages and overtime. Review your state's laws if you think your employer has violated your rights to overtime pay. Both the FLSA and state laws cover various circumstances. Your employer must comply with these laws. 

Q: When must employers pay overtime wages?

A: The FLSA requires that covered, nonexempt employees receive overtime pay at a rate of not less than one and one-half times the employee's regular rate of pay after 40 hours of work in a workweek. Some states have enacted overtime laws. When an employee falls under both state and federal overtime laws, the higher pay rate prevails.

Employers must normally pay overtime wages earned in a specific workweek on the regular payday for the pay period that includes those wages.

Q: What are the legal limits on working hours for employees?

A: The FLSA does not dictate a maximum number of working hours for employees who are over the age of 16. You can work any number of hours in a day or week as your employer requires.

Q: How many hours is full-time employment? How many hours is part-time employment?

A: The FLSA does not define full-time and part-time work in terms of hours. The employer typically decides this. The status of an employee as full-time or part-time does not affect the FLSA's provisions.

Q: Can an employer alter an employee's schedule or work hours?

A: There are no specific rules under the FLSA about changing an employee's scheduled working hours, aside from certain rules for young workers. Employers generally have the discretion to modify work schedules without prior notification or agreement from employees unless there is a separate agreement.

Q: What is compensatory time?

A: Compensatory time off, commonly known as "comp time," refers to the paid time away from work that employees can accumulate instead of receiving overtime wages. Under the FLSA, only employers in the public sector are permitted to provide comp time instead of overtime pay to their nonexempt workers.

When comp time is used, it must be accrued at a minimum rate of 1.5 hours for each hour of overtime worked. For instance, if you work 10 overtime hours, you would be eligible for a minimum of 15 hours of comp time.

FLSA Requirements: Recordkeeping and Notices

Q: Are pay stubs required?

A: While employers must maintain accurate documentation of hours worked and wages paid as stipulated by the Fair Labor Standards Act, the law does not obligate employers to provide pay slips to their employees.

Q: Is notice required before an employee is terminated or laid off?

A: Under the FLSA, there is no mandate for employers to give notice to employees before termination or a layoff. However, for mass layoffs or plant closures, employers are subject to the Worker Adjustment and Retraining Notification (WARN) Act, which outlines the requirements for advance notification. Additionally, state law might impose notification requirements in such circumstances.

FLSA: Filing a Complaint

Q: I believe my employer has violated my workplace rights under the Fair Labor Standards Act of 1938. How do I file a complaint?

A: The U.S. Department of Labor enforces the FLSA. Specifically, DOL's Wage and Hour Division (WHD) investigates FLSA complaints. In addition, your employer may also be violating state law, so consider filing a complaint with your state's labor department.

More FAQ: Wage Laws and Employee Rights

The following section answers common questions on wage laws, health and medical leave, employee time off, and more.

Q: Does my employer have to pay me if I take a break from work after I have my baby?

A: The Family and Medical Leave Act (FMLA) requires employers to provide up to 12 workweeks of unpaid leave for one or more of the following reasons:

  • The birth and care of a newborn child
  • Placement of a child through adoption or foster care
  • To care for an immediate family member (spouse, child, or parent) with a severe health condition
  • When an employee is unable to work because of a severe health condition

It's important to note the difference between FMLA and workers' compensation. You will receive replacement wages through workers comp if you injure yourself on the job.

To be eligible to take leave under the FMLA, you must:

  • Work for a covered employer
  • Work 1,250 hours during the 12 months before the start of your leave
  • Work for a company with 50 or more employees
  • Have been with your company for at least 12 months. The 12 months of employment don't have to be consecutive to qualify for FMLA leave.

In addition to the FMLA, many states have similar laws that allow employees to take unpaid time off for pregnancies. To learn more about the FMLA, visit the Department of Labor website.

Q: Should my employer pay me for mandatory training?

A: Yes. If your employer requires that you attend training, they must pay you for your time. Common examples include mandatory orientation and sexual harassment training, which includes travel time if the training is off-site.

Q: The National Guard is deploying me. Will I still have my job when my deployment is over?

A: The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects your reemployment rights when you return from service in the military. This includes people in the Reserves or National Guard.

The USERRA prohibits employment discrimination against people in the military. Companies must reemploy returning service members in the job they would have if they hadn't been absent for military service.

The employee must receive the same seniority, status, and pay. Employers must also provide all other employment rights and benefits. This includes sick leave and vacation pay.

Q: Can my spouse take time off to help prepare for my deployment?

A: The law doesn't require your employer to give you time off to help prepare for your spouse's deployment. However, many businesses offer this type of leave.

Q: What counts as a half day of work?

A: If your regular shift is eight hours, a half day would be a four-hour shift. If your employer requires you to take an unpaid lunch, it does not count toward your four-hour half-day shift.

For example, let's say you usually work an eight-hour shift. Your shift includes a half-hour, unpaid lunch break. If you start your half-day shift at 9 am, your half-day shift will end at 1 pm.

Q: Can I take time off work to vote?

A: Typically, yes. This is especially true if you would otherwise be unable to to vote. Almost every state has laws requiring employers to give employees time off to vote. However, most states require that you provide your employer notice that you need the time off.

Q: Can I take time off of work for safety reasons?

A: In some states, employees can take time off for other, more personal reasons. These reasons may include:

State laws vary regarding these situations.

Have Questions About Wages Laws or Employee Rights? Talk to a Lawyer

While your state may have extra protections for workers, every employer in the nation must comply with the Fair Labor Standards Act. If you believe your employer has violated your FLSA rights, you may want to speak with a local employment attorney about filing a claim. An experienced attorney can explain your legal options and help secure a legal remedy.

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