Frequently Asked Questions

How does the Fair Labor Standards Act protect American workers?

Although it has seen various amendments since it was enacted in 1938, the Fair Labor Standards Act (FLSA) protects employees in the U.S. by requiring employers to pay the minimum wage, to provide overtime pay for time worked in excess of 40 hours in a workweek, and to maintain employee compensation records. The FLSA also places restrictions on the employment of children. There are many areas that the FLSA does not cover, deferring to specific agreements between employers and employees instead.

What is minimum wage? Is it the same rate across the U.S.?

The FLSA establishes a federal mandatory minimum wage requirement, currently $7.25, that applies to workers employed by:

• Companies with annual gross revenues of at least $500,000, as well as smaller companies engaged in interstate commerce or production of goods for interstate commerce
• Guards, janitors, and maintenance employees in jobs that are closely related and directly essential to interstate activities
• Employees of federal, state or local government agencies, hospitals, schools, and domestic workers

Many states and major cities have their own minimum wage laws with even greater protections for workers, and employers must comply with the FLSA and state and local regulations to avoid liability.

How many hours do I have to work to be considered a full-time employee?

It comes as a surprise to many people that the FLSA does not define full-time employment or part-time employment, leaving that determination to the employer. The FLSA does generally require, however, that employers pay overtime to employees who put in more than 40 hours in a workweek.

Is there a limit to the number of hours I can work in a day or week?

Generally, no. As long as an employee is 16 years of age or older, the FLSA does not restrict the number of hours each day or each week that an employee can work.

Does the law require employers to pay overtime?  What is the overtime rate?  

Yes. For hours worked in excess of 40 hours per week, the FLSA requires employers to provide overtime pay to a non-exempt employee at a rate of no less than one and one-half times the employee’s regular hourly rate. There are some exceptions for occupations such as law enforcement, firefighters, and health care workers. Certain states have their own overtime pay laws, entitling employees to whichever rate – state or federal – is higher.

Can my employer make me work overtime?

Yes. Under the FLSA and other federal laws, an employer can, in fact, require employees to work more than 40 hours in a workweek, and can even discipline or terminate employees for refusing to do so. The FLSA does not establish the number of hours that an employer can require employees to work in a given day or week, only that the employer provides overtime pay for hours worked beyond 40 hours in a workweek. Many people believe they are entitled to overtime pay if they put in more than eight hours a day, which is incorrect. The FLSA threshold is based on the workweek, not the workday – although some states require overtime pay for hours in excess of eight hours a day.

What does it mean to be exempt from FLSA? What is a non-exempt employee?

Employers are not required to pay exempt employees overtime but can choose to do so at the employers’ discretion. Exempt workers usually fall into three job categories – executive, professional, and administrative – but it is the job duties, not the title alone, which determines exempt status. Common exempt positions include:

• Commissioned salespeople who work in retail establishments
• Computer professionals earning at least $27.63 per hour
• Drivers, driver’s helpers, loaders, and mechanics employed by certain motor carriers
• Farm workers employed on small farms
• Automobile dealership mechanics, parts workers, and salespeople
• Salaried executive, administrative, professional and outside sales employees
• Certain interns, independent contractors, temporary workers, volunteers, and trainees

By contrast, the FLSA entitles non-exempt employees to overtime pay when they work more than 40 hours in a given pay week.

Are salaried workers entitled to overtime pay?

It depends. Most salaried employees do not receive overtime pay, but the FLSA makes an exception based on the salary amount. Currently, if an employee earns less than $23,600 annually or $455 per week, he or she is eligible for overtime, just like a non-exempt hourly worker. Attempts are being made to increase the salary threshold. 

Are part-time employees entitled to overtime pay?

The FLSA doesn’t regulate the number of hours that constitute full-time or part-time employment, but does require that employers pay overtime to any nonexempt employee who works more than 40 hours in a workweek.

What is double time and double time-and-a-half?

Employers may pay double time or double time-and-a-half for holiday hours or any hours over a specific amount of overtime hours. Because the FLSA doesn’t require it, it is up to the employer to establish double-time pay practices. California does have a double-time pay law that applies when employees work more than 12 hours in a day or work a seventh consecutive day.

What is a Chinese overtime?

Also referred to as the fluctuating workweek, day rate, or piece-rate pay formula, Chinese overtime allows an employer to pay a fixed salary to an employee, with a “half-time” rate for hours worked in excess of 40 hours in a workweek. To comply with the FLSA, Chinese overtime requires that the employee’s hours vary from week to week, that rate of pay used to calculate the employee’s half-time overtime rate must not fall under the federal minimum wage, and that the employer and employee clearly understand that the salary will cover all hours worked in a workweek, even if only a small amount of time is worked. While this is a lawful pay practice if implemented correctly, mistakes and abuses that deny workers proper compensation are considered FLSA violations.

Am I entitled to extra pay for weekend or night work?

Not necessarily. The FLSA does not require that employers pay additional compensation for weekend or night work.  The FLSA’s primary concern is that nonexempt employees receive overtime pay for hours worked beyond 40 hours in a workweek.

Is my employer required to pay me for vacation time, sick days, and holidays?

Not under the FLSA. Because the FLSA does not entitle employees to compensation for time they don’t work, employers are not required to pay workers for vacation days, sick days, or holidays when they are not on the job.

Does FLSA require my employer to pay me for meal breaks and rest periods?

Although the FLSA doesn’t require meal periods and rest breaks, employers commonly provide these respites to employees during the workday, and many states have local laws that provide for such breaks. Rest periods of 20 minutes or less each day are generally considered hours worked and must be paid. If employers opt not to pay non-exempt employees for meal breaks, the workers must be given an unpaid meal break of at least 30 minutes, during which time they must be completely relieved from performing job duties and tasks. The FLSA requires employers with fewer than 50 employees to provide a reasonable break time for nursing mothers to express breast milk.

Are pay stubs required? Does the FLSA define how I get paid or how I can collect the compensation I’m owed?

Consistent with the FLSA’s recordkeeping provisions, employers must maintain accurate records of hours worked and wages paid to employees, but they aren’t required to issue pay stubs. The FLSA does not provide for payment or collection of employee wages

I suspect that I haven’t been paid wages and overtime pay for all the hours I worked. Can I file a lawsuit against my employer for unpaid compensation?

Possibly. Employees who have been denied compensation or whose wages and overtime pay have been unlawfully withheld have the right to recover damages from the employers in court. Many times, whole groups of employees have been similarly wronged by an employer’s illegal pay practices, and a collective action lawsuit provides a cost-effective, more streamlined means to recover unpaid wages and overtime under the FLSA.

How long do I have to file a lawsuit for unpaid wages and overtime?

The FLSA includes a two-year statute of limitations that allows for employees who have been denied wages and overtime pay (extended three years if the employer willfully violated the FLSA). Under this two-year provision, back wages and overtime earned more than two years before a federal lawsuit is filed may not be collectible. As such, time is of the essence, so if you suspect your employer unlawfully withheld compensation, you need to speak with a wage and hour attorney right away!

May employers retaliate against employees who complain about unpaid wages or overtime?

No. The FLSA includes an anti-retaliation provision which protects employees who inquire about, complain (formally or informally), or file lawsuits in connection with unpaid minimum wages or overtime pay.  If an employer takes adverse action against a complaining employee, the employee may be entitled to lost wages, liquidated damages, emotional distress damages, attorneys’ fees, and costs.

Does the FLSA cover other employment issues such as discrimination or sexual harassment in the workplace?

No. The FLSA’s reach only extends to compensation and certain pay practices and policies, and therefore doesn’t address other breakdowns in the employer-employee relationship or workplace issues such as discrimination, harassment, or mass layoffs. Although our attorneys focus on wage and hour violations, we have many trusted colleagues who practice in these areas, and we would be happy to introduce you to them for a free consultation.