Wage and Hour

The Fair Labor Standards Act (FLSA), enacted in 1938, is a federal law which provides important protections for employees. The FLSA institutes a national minimum wage for employees and mandates that many employees be paid overtime—1.5 times their regular hourly rate—for hours worked in excess of 40 in a work week. The FLSA also contains provisions for protecting minors in the workplace from dangerous employment and, since being amended by the Equal Pay Act, requires employers to pay men and women equally.

The FLSA has allowed for a series of increases to the federally mandated minimum wage, which was set to $7.25 an hour on July 24, 2009. The FLSA was intended to ensure that workers at the bottom end of the pay scale still receive a fair wage.

Violations

While the FLSA serves its much-needed purpose in protecting workers’ rights, employers can take advantage of their employees and violate the law in a number of ways.

  • Failure to Pay Minimum Wage: Some employers falsely claim that their employees are exempt from the FLSA’s provisions on the minimum wage. Others illegally withhold wages, thereby reducing the employee’s effective wage to one less than minimum wage.

  • Failure to Pay Overtime: Workers in many fields are eligible for overtime pay for all hours worked in excess of 40 in a work week. However, some employers try to avoid paying these workers the overtime that they are due, either by denying that the employee is entitled to overtime or failing to pay the employee for all hours worked.

    • In an effort to avoid paying overtime, employers often falsely claim that their workers are not eligible for overtime pay, either by misclassifying employees as “independent contractors,” who are not entitled to overtime, or by improperly categorizing their employees as “exempt” under the FLSA.

    • Additionally, even for employees whom the employer acknowledges would be entitled to overtime, employers may attempt to avoid paying overtime by improperly measuring employees’ time worked. This can be done in a number of ways, including failing to report meal breaks or travel time, forcing employees to work off the clock, or even going as far as to force employees to intentionally report less time than time worked.

Retaliation

The FLSA prohibits employers from retaliating against employees who assert their rights under the FLSA. That means that an employer cannot fire, demote, suspend, or take any adverse employment action because an employee has asked for overtime pay, challenged an employer’s decision not to pay overtime, or engaged in some other protected activity.

Remedies

If you believe you have been affected by an FLSA violation, you have two years to file for recovery of back pay under the FLSA unless the violation is willful, in which case a three-year statute of limitations applies.

  • Back Pay: The most common remedy under FLSA is to seek damages in the form of back pay for time owed. If the Court finds that the violation was intentional, an employee may be entitled to double damages.

  • Criminal Prosecution: With knowing and willful violations of the FLSA, the government can seek prosecution against employers, resulting in large fines, and in certain instances, prison sentences. Instances of such prosecution, however, are extremely rare.

  • Suits by the Secretary of Labor: In certain instances, lawsuits can be filed by the Secretary of Labor on behalf of employees seeking damages for them. The Secretary of Labor can seek back pay and other damages, as well as seek injunctions against future violations of the FLSA.

If your employer has violated your FLSA rights, contact the experienced employment attorneys at The Harman Firm, LLP.

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