Fair Labor Standards Act FAQ

general flsa info

+ What is the FLSA?

The FLSA is federal statute governing general labor law. Among other things, it includes federal minimum wage requirements, overtime provisions, and child labor restrictions.

+ Who is covered under the FLSA?

Employees may be covered under the FLSA in two different ways: Enterprise Coverage or Individual Coverage.

Enterprise Coverage

When the FLSA covers an enterprise, it covers all of the enterprise’s employees. In order for the enterprise to be covered, it must be engaged in Interstate Commerce. This includes the production of goods for interstate commerce or even the mere handling of goods in any way that will be used for commerce by an individual.

There are also certain kinds of enterprises whose employees are covered. These enterprises must have at least two employees or more and $500,000 worth of sales volume per year. They may also be enterprises that provide medical care or nursing to residents, schools, and government agencies.

Individual Coverage

If the FLSA doesn’t cover an enterprise, it still may cover an individual if their work regularly involves them in interstate commerce. This includes being directly engaged in interstate commerce or involved in the production of goods that will be used for commerce.

Last updated on March 26, 2012 by Blumenthal, Nordrehaug & Bhowmik

+ What exactly does it mean to be "engaged in interstate commerce"?

As a general definition, interstate commerce encompasses any work related to the movement of persons, things, or information across state lines or foregin countries.

For purposes of understanding who may be covered under the FLSA, being engaged in interstate commerce implies a large umbrella for various employees. Below are examples for clarification.

Some common examples of being engaged in interstate commerce include employees who:

- communicate with people in another state (via fax, email, mail, or phone).

- travel to another state in performing their job duties

- loads goods that will travel to another state (or unloads goods that came from another state)

- uses an electronic device to authorize a credit card purchase (like a cashier or waitress)

Employees who perform support functions for certain instrumentalities of interstate commerce are also considered to be engaging in interstate commerce and therefore proteced under the FLSA. These include:

- security workers at transportation hubs

- custodial workers at transportation hubs

- laborers who maintain, repair, or perform improvements to a city street

+ What exactly does it mean to be "engaged in the production of goods for interstate commerce?"

The FLSA also covers individuals who are engaged in the production of goods used for interstate commerce. More specifically, production includes handling, producing, manufacturing, or transporting. Goods inludes any products, commodities, merchandise, or ingredients thereof. Interstate Commerce refers to the transportation of these goods across state lines.

Put simply, the FLSA covers any employee who works in a company involved in making goods that will eventually be sold in other states.

Last updated on March 26, 2012 by Blumenthal, Nordrehaug & Bhowmik

+ What is provided in the FLSA's "overtime" provision?

The FLSA provides that all non-exempt employees are entitled to overtime pay. Under federal law, overtime is currently defiend as “all hours worked beyond 40” in a given workweek. For each hour of overtime pay, the employee is entitled to “time-and-one-half” of their regular rate of pay (their hourly wage times one and a half). This differs from California labor law where the employee is also entitled to overtime pay for all hours worked beyond 8 in a given workday, and the first 8 hours of a 7th consecutive workday.

Last updated on March 26, 2012 by Blumenthal, Nordrehaug & Bhowmik

how to collect overtime

Info about what employees can do when they are cheated out of overtime under the FLSA. Search the FAQ for entries containing:

+ Who is responsible for maintaining records for an employee's time worked?

Every employer is responsible for maintaining accurate records for all of their non-exempt employees’ time worked. This includes off-the-clock compensable activities as well. If the empoyer was not keeping records of off-the-clock activities, the employee may still recover based on his/her realistic, good faith estimates. Employers are subject to penalites for providing inaccurate wage statements.

Last updated on March 27, 2012 by Blumenthal, Nordrehaug & Bhowmik

+ How does an employee prove that an employer knew that off-the-clock work was being performed?

An employer will be held to know what it could’ve found out with reasonably diligent inquiries. Most courts will find that the employer “knew” or “should’ve known” that off-the-clock compensable work was being performed unless its a rare case where the employee was deliberately going out of their way to hide it.

Last updated on March 26, 2012 by Blumenthal, Nordrehaug & Bhowmik

Exempt V. Non-Exempt Employees

Common questions and info to help distinguish between exempt and non-exempt employees:

+ What is an exempt and non-exempt employee?

Non-exempt employees are entitled to overtime pay for all hours worked beyond 40 in a given workweek.

Exempt employees are not entitled to any overtime compensation and are required to fulfill their duties regardless of hours worked. In order to be exempt, you must both:

  • Be paid a salary of at least $23,600 per year AND on a true salary basis. This means that you still are paid the same regardless of how much work you actually performed. If you are paid less when you work less-than-your-normal hours, you are not being paid on a salary basis.

  • pass the job duties test

A common misconception among employers is that making you a salaried employee automatically makes you exempt from overtime. They fail to condiser the “job duties” test which must also be passed in order to correctly classify your position as exempt.

Last updated on March 29, 2012 by Blumenthal, Nordrehaug & Bhowmik

+ Who determines which employees are exempt or non-exempt?

The law ultimately establishes who is exempt vs. non-exempt. However, for statuses not clearly established by law, the human resources Classification Specialist will determine the FLSA status of certain job positions.

Last updated on March 27, 2012 by Blumenthal, Nordrehaug & Bhowmik