FLSA (Wage and Hour) Violations

The Fair Labor Standards Act (FLSA) establishes minimum wage and overtime pay requirements for employees.  Employees who are covered by the FLSA are entitled to a minimum wage of at least $7.25 per hour. In addition, these employees must be paid overtime pay at a rate of at least one and one-half times their regular rates of pay after 40 hours of work in a workweek.

​Not all employees are covered by the FLSA.  This is because the law defines certain employees as “exempt” from the FLSA’s protections.  Unfortunately, as further described below, employers often attempt to improperly and illegally classify certain non-exempt employees as “exempt” in order to avoid their responsibilities under the FLSA.

Is Every Employer Subject to the FLSA?

The FLSA applies to employers whose annual sales total $500,000 or more, or who are engaged in “interstate commerce.”  Courts have interpreted the term “interstate commerce” very broadly, meaning that nearly all workplaces are covered by the FLSA.

Who is an “Exempt” Employee?

Even when an employer is covered by the FLSA, some of its employees are exempt from the Act’s minimum wage and/or overtime pay provisions.  The most common “exempt” employees are executive, administrative, and professional employees, outside sales employees, and employees in certain computer-related occupations.

 

(1)  Executive Exemption

To qualify for the executive exemption, all of the following tests must be met:

• The employee must earn at least $455 per week;
• The employee’s primary duty must be managing the business or a department of the business;
• The employee must regularly direct the work of at least two or more other full-time employees; and
• The employee must have the authority to hire, fire, discipline, promote, and demote others, or make recommendations about these decisions.

 

(2)  Administrative Exemption

To qualify for the administrative exemption, all of the following tests must be met:

• The employee must earn at least $455 per week;
• The employee’s primary duty must be the performance of office or non-manual work directly for company management or administration; and
• The employee must primarily use his or her own discretion and judgment in work duties.

 

(3)  Professional Exemption

There are two types of professional exemptions: the “learned professional” exemption and the “creative professional” exemption.​  

To qualify for the “learned professional” employee exemption, all of the following tests must be met:

• The employee must earn at least $455 per week.  However, these salary requirements do not apply to lawyers, doctors, and teachers;
• The employee’s primary duty must be the performance of work requiring advanced knowledge;
• The advanced knowledge must be in a field of science or learning; and
• The advanced knowledge must be customarily acquired by a prolonged course of specialized instruction.

 

To qualify for the “creative professional” employee exemption, both of the following tests must be met.

• The employee must earn at least $455 per week; and
• The employee’s primary duty must be the performance of work requiring invention, imagination, originality, or talent in a recognized creative field.

 

Highly Compensated Employees

​Employees who perform office or non-manual work and are paid total annual compensation of $100,000 or more are exempt from the FLSA if they regularly perform at least one of the duties of an exempt executive, administrative, or professional employee described immediately above.

 

​(4)  Outside Sales Exemption

To qualify for the outside sales exemption, both of the following tests must be met:

• The employee’s primary duty must be making sales, or obtaining orders or contracts for services or for the use of facilities; and
• The employee must be regularly engaged away from the employer’s place of business.

 

(5)  Computer Employee Exemption

To qualify for the computer employee exemption, all of the following tests must be met:

• The employee must earn at least $455 per week or, if compensated on an hourly basis, at a rate of at least $27.63 per hour;
• The employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field; and
• The employee’s primary duty must consist of: (i) the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications; (ii) the design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; (iii) the design, documentation, testing, creation or modification of computer programs related to machine operating systems; or (iv) a combination of these duties.

 

Common FLSA Violations:

​Unfortunately, some employers routinely violate the protections bestowed upon American workers and their families by the FLSA.  Some of the more common employer violations are:

• Misclassifying salaried employees as exempt “managers,” “supervisors,” “administrators,” or “professionals.”
• Misclassifying employees as “independent contractors.”
• Failing to credit and pay employees for all time spent working.
• Failing to pay for “unauthorized” overtime, even though the employer is aware that the overtime work is being performed.
• Allowing work during meal breaks.
• Deducting for rest or meal breaks of less than 20 minutes.

 

If you have been subjected to an FLSA violation in your place of work, it is critical that you retain a knowledgeable and experienced employment attorney to protect your rights.  My top priority is obtaining compensation for the victims of unlawful discrimination or other illegal conduct in the workplace. Contact me today for a FREE CONSULTATION.