Wage and Hour Law Under the FLSA

The Fair Labor Standards Act (FLSA) applies to virtually all public and private employers, and is chock- full of rules about everything from the minimum wage to overtime pay. Along with these rules come exceptions and exemptions, and myriad expectations as to what wages must be paid and how. In short, the FLSA has and continues to be a source of great confusion to many employers. But ignoring it does not make it go away.

The United States Department of Labor (USDOL) is taking an increasingly active role in ensuring compliance with all aspects of the FLSA, including proper classification of workers as either independent contractors or employees, proper classification of employees as either exempt or non-exempt from minimum wage and overtime requirements and what constitutes compensable work time, to name just a few. What’s more, the United States Department of Labor over the last several years has begun to collaborate with some of their state counterparts. Why is that? The reason is because failure to properly classify and pay workers means less payroll withholding, which in turn means less revenue going to the federal (and state) government coffers. The USDOL therefore has every incentive to crack down on FLSA violations, real and perceived. That is why you as an employer/manager/H.R. practitioner cannot afford to ignore or minimize their FLSA obligations.

• Business Owners
• Managers
• HR Representatives
• HR Generalists
• HR Assistants
• Payroll Professionals
• Chief Financial Officers
• Controllers
• Consultants
• Managers
• Supervisors, etc.

Periodically, the Wage and Hour Division (WHD) of the Department of Labor (DOL) issues updates and new regulations that employers must comply with or face stiff penalties. It is every organization's responsibility to stay abreast of all pertinent information regarding FLSA laws and federally mandated compliance requirements.

During the last decade or two, employers have found it increasingly difficult to decide which employees are entitled to overtime. Those classifications are commonly referred to as exempt employees (those who meet the FLSA’s requirements to be exempt from overtime pay) and non-exempt employees (employees the law requires to be paid overtime).

The FLSA contains dozens of exemptions, which basically provide that specific categories of employers and employees aren’t subject to the Act’s overtime requirements. Most common are the “white-collar” exemptions for executive, administrative, and professional employees, computer professionals, and outside sales employees.

Many employers believe that if their employees agree to certain pay arrangements, or agree to be classified as independent contractors, then there is no violation of the law. This is not the case. Employees cannot agree to waive their rights under the Fair Labor Standards Act. For example, offering your employees time off or additional benefits in place of overtime pay is still an FLSA violation—even if your employees sign a written contract to that effect. The FLSA and only the FLSA determines the employer’s FLSA obligations. In fact, even when an employee willingly goes along with, or even requests, an illegal pay arrangement s/he can still sue the employer for FLSA violations and recover any back pay he is owed under the law, in addition to keeping the extra pay and benefits he already pocketed under the illegal compensation system, and additional amounts in liquidated damages. If that’s not enough you may also be on the hook for your employee’s legal fees!

Janette Levey Frisch is an attorney with over 20 years’ of legal experience. Ms. Frisch, owner of The Emplawyerologist Firm, is on a mission: to help employers stay in compliance and out of court. Her extensive areas of expertise include federal and state anti-discrimination laws, FMLA, ADA, wage and hour issues, I-9’s, criminal background checks, employment agreements, terminations, and a myriad other challenges impacting employers today. Ms. Frisch worked as in-house counsel in the temporary staffing industry for almost nine years prior to starting her own practice.

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