Fair Labor Standards Act

You work long nights, you work weekends, but your weekly salary never changes. Perhaps you include the overtime hours you work on your timesheet but your boss ignores this or even changes your hours to avoid paying you for those additional hours.

Now, you’ve missed out on time with your family and other life commitments and you have no additional money to show for it.

Or maybe you’re a waiter and you’ve had a few slow nights at the restaurant. Your hourly wage, including your tips, averaged out to less than $7.25 per hour and now you cannot afford rent.

Or maybe you’re a new mother and your employer prevents you from breastfeeding or pumping milk at work. During your long, continuous work hours, you have no way to satisfy this biological need.

You Are Entitled Certain Basic Rights as an Employee

Under the Fair Labor Standards Act (“FLSA”), your employer must pay you additional compensation for any hours you work after forty hours for a particular work week. Your employer must also pay you at least the federal minimum wage. Additionally, if you are a new mother, your employer must provide you a reasonable location and length of time to express breast milk.

Depending on what state you work in, your state’s laws can guarantee you additional protections but can not mandate a lower level of protection than you are guaranteed under the FLSA.

The FLSA Likely Applies to Your Employer

The FLSA only applies to employers with annual sales that exceed $500,000 or to companies that engage in interstate commerce. Although this may seem to only apply to large companies, courts have interpreted the term “interstate commerce” broadly.

Some examples of companies that engage in “interstate commerce” under the FLSA include companies that regularly use the USPS to send or receive letters from another state or use company phones or computers to conduct business with someone in another state.

The FLSA May Apply to You, Depending On Your Job Duties

The FLSA applies to all employees UNLESS you fall into one the following exemptions:

  1. Executive: do you manage other employees as your primary job duty, direct the work of two or more full-time employees, have the authority to hire, fire, discipline, promote, and demote others or to make recommendations about these decisions and do you earn at least $455 per week?
  2. Administrative employee: do you primarily perform office or non-manual work directly for your employer’s management or administration department; primarily use your discretion and judgment in work duties; and earn at least $455 per week?
  3. Professional: do you perform work requiring invention, imagination, originality, or talent in a recognized creative field (such as music, writing, acting, and the graphic arts) or do you perform work requiring advanced knowledge, that is predominantly intellectual, requires a prolonged course of instruction, and requires the consistent exercise of discretion and judgment and do you earn at least $455 per week?
  4. Highly Compensated Employee: do you perform office or non-manual work and are you paid total annual compensation of $100,000 or more?
  5. Miscellaneous Employee: do you work for a seasonal amusement park?; do you work for a local newspaper, which has a circulation of less than 4,000 people?; do you deliver newspapers?; do you work on a foreign vessel?; do you work on a small farm?; are you a personal companion or a casual babysitter?

If the FLSA Applies to You, You are Entitled to Overtime Compensation, the Federal Minimum Wage and to Breastfeed at Work

If you are a covered, nonexempt employee, the FLSA requires your employer to provide you:

  1. Payment for Overtime: If you work more than 40 hours in a work week, your employer must pay you at least one and one-half times your regular rate of pay. There is no limit to the total number of hours you can work in any work week.
  2. The Federal Minimum Wage: The federal minimum wage is $7.25 per hour. If your state law also has a mandated minimum wage, you are entitled whichever wage is higher. Your total amount of pay, divided by the number of hours you worked, must average at least $7.25 per hour.
  3. Breastfeeding at Work: If you are a nursing mother, your employer must provide you a reasonable break time to express breast milk for up to one year after your child’s birth.  Your employer must provide a place, other than a bathroom, that is shielded from view and free from intrusion by the public, for you to express breast milk.

Your Employer Can Not Retaliate Against You for Bringing an FLSA Claim

If your employer takes adverse employment action against you for filing an FLSA claim, you can file a lawsuit for reinstatement to your position, lost wages and damages.

Three Things You Can Do Right Now.
  1. If the FLSA applies to you and your employer is not paying you at least $7.25 per hour or compensating you for working overtime, report this to your human resources department in writing and call a lawyer immediately.
  2. If after reporting the FLSA violations you find yourself holding a pink slip, call a lawyer immediately.
  3. Gather any documents or records you have that show any pay periods where you were not paid at least $7.25 per hour or compensated for overtime.

In addition to the federal Fair Labor Standards Act, individual states often have their own wage laws.

Here is a chart comparing the laws in DC, Maryland and Virginia

Virginia and Maryland FLSA laws chart
Click to view

VA and MD FLSA laws

Frequently Asked Questions

What if I am a tipped employee?

Your direct wage must be at least $2.13 per hour. Additionally, your wages combined with your tips must still equal at least $7.25 per hour. Otherwise, your employer must pay the difference. Additionally, unless your restaurant uses a tip pooling system or sharing arrangement, your employer must allow you to retain all of the tips you earned each day.

What if I am an independent contractor?

The FLSA does not apply to independent contractors. However, courts generally interpret the term “independent contractor” narrowly, so that the protections of federal law apply to as many people as possible.

The most important factor the court will consider is whether you are employed by a single employer. If almost all of your income comes from a single employer, the court will likely find that you are an employee, and thus entitled to the protections of the FLSA.

Some other factors the court will consider is whether the relationship with your employer is permanent, whether you lacked bargaining power to negotiation the terms of your employment, and whether you were economically dependent on your employer. If your answer to any of these questions is “yes,” then you are likely not an independent contractor.

A final consideration is whether your job requires any special skills or earns particularly high compensation. In this case, the court is more likely to find that you are an independent contractor and that the FLSA does not apply to you.

What if I am an undocumented worker?

The FLSA applies to you regardless of your citizenship status. Your employer cannot evade your rights to federal protection by threatening to report your undocumented status to the government.

What if I am a domestic worker?

The FLSA applies to domestic workers, including housekeepers, gardeners, childcare workers and chauffeurs, as long as you make at least $1,000 in wages from a single employer in one year or as long as you work at least eight hours in one week for one or several employers. Accordingly, the FLSA would likely apply to you if you are a fulltime au pair, but not if you babysat for one night.

Am I entitled to paid time off?

Although some employers provide various forms of paid time off, unfortunately, the FLSA does not require your employer to compensate you for time off, including vacations, holidays or sick days.

Am I guaranteed extra pay for weekends or holidays?

Unfortunately, the FLSA does not require your employer to pay you extra compensation for hours you work on weekends, holidays, or regularly scheduled time-off, unless the hours you worked would be overtime.

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