FAQ: The Fair Labor Standards Act of 1938

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 minimum wage pay, overtime pay, child labor, employer recordkeeping, and breaks for nursing mothers, among other things. The law also specifies the conditions under which some employees are exempt from its requirements.

This guide to FAQ provides information on some common concerns regarding FLSA matters.

Employees

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.

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: I am an hourly worker. Does the FLSA cover my employment?

A: Yes. Hourly workers are nonexempt under the FLSA. This means that your employer must pay you at least the federal minimum wage and overtime pay of 1.5 hours for each hour over 40 that you work in a workweek.

Q: I am paid a salary. My boss says I am a professional and don't qualify for overtime pay, but do I?

A: Probably not. Some jobs are exempt, or excluded, from the FLSA's protections. Employers don't have to pay certain employees the FLSA minimum wage or FLSA overtime pay. In general, workers in bona fide executive, administrative, professional, computer, and outside sales positions don't get overtime pay.

The exempt designation is not up to the employer, as many employers would declare their workers exempt to avoid paying overtime. Several conditions apply. You must receive your pay on a salary basis, and your income needs to meet a salary threshold of $684 a week. Once you satisfy the tests for salary basis and salary threshold, your job must pass the job duties tests. A different job duties test applies to each type of exempted position.

Q: Can minors work?

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.

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. 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.

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 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.

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.

Q: When must overtime wages be paid?

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 the hours an employee is scheduled to work be altered?

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: Must employees receive additional compensation for working nights or weekends?

A: Compensation for night or weekend shifts is subject to an agreement between you and your employer. The FLSA does not mandate additional pay for night or weekend work. However, nonexempt workers must receive overtime pay of one and a half times their regular rate of pay for hours worked beyond 40 in a week.

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.

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.

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 you might be able to file a complaint with your state's labor department.

Have Questions About Your Rights Under FLSA? 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 FLSA rights have been violated, you may want to speak with a local employment attorney about filing a claim.