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  • Writer's pictureDavid Manes

The Fair Labor Standards Act of 1938 (FLSA)

The Fair Labor Standards Act of 1938 (FLSA) is a United States labor law intended to protect workers against unfair pay practices and work regulations. It establishes minimum wage, overtime pay, record keeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. FLSA minimum wage and overtime requirements apply differently to employees depending on how they are classified. The FLSA creates two classifications of employees for purpose of minimum wage and overtime purposes. The two classifications are exempt employees and non-exempt employees. Some jobs are specifically excluded in the statute itself. For example, employees of movie theaters and many agricultural workers are not governed by the FLSA overtime rules. Another type of exclusion is for jobs which are governed by some other specific federal law. Generally, if a job is governed by some other federal labor law, the FLSA does not apply. For example, most railroad workers are governed by the Railway Labor Act, and many truck drivers are governed by the Motor Carriers Act, not the FLSA. Many of the FLSA exclusions are found in §213 of the FLSA. There are different steps and requirements depending on the employee’s title and salary to determine whether an employee is exempt or non-exempt. Disagreement over whether an employee is exempt or not is a common occurrence under the FLSA. If you are unsure of whether you are an exempt or non-exempt employee, contact an RMN attorney to help navigate this particularly tricky area of law.

Currently, the federal minimum wage is $7.25, however, many states also have minimum wage laws. The current federal minimum wage for tipped employees is $2.13. In cases where an employee is subject to both state and federal minimum wage laws, the employee is entitled to the higher minimum wage.

The FLSA covers overtime payment to employees. Covered non-exempt employees must receive overtime pay for hours worked over 40 per workweek at a rate not less than one and one-half times the regular rate of pay. The FLSA applies on a workweek basis. An employee's workweek is a fixed and regularly recurring period of 168 hours — seven consecutive 24-hour periods. It need not coincide with the calendar week but may begin on any day and at any hour of the day. However, the FLSA does not require overtime pay for work on weekends, holidays, or regular days of rest, unless overtime is worked on such days. In other words, that specific day is not automatically counted as overtime unless the work during such a day constitutes more than 40 hours for that workweek. Hours worked typically includes all the time during which an employee is required to be on the employer’s premises, on duty, or at a prescribed workplace. There is no limit on the number of hours employees 16 years or older may work in any workweek.

Whether time may be considered “hours worked” is dependent on the particular circumstances. For instance, an employee who is required to remain on call on the employer’s premises is working while “on call.” However, an employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Further, rest periods of short duration (i.e. 20 minutes or less) are common and customarily paid for as working time. However, unauthorized extensions of authorized work breaks need not be counted as house worked. Bona Fide meal periods (typically 30 minutes or more) generally need not be compensated as work time. The employee must be completely relieved from duty for the purpose of eating regular meals. The employee is not relieved if he/she is required to perform any duties, whether active or inactive, while eating. Compensation for travel time is dependent on what kind of travel is involved. Travel from home to work is considered ordinary home to work travel, which is not work time. However, travel involved with an assignment in another city and travel from job site to job site during the workday, is work time and must be counted as hours worked. Finally, travel that keeps an employee away from home overnight is travel away from home and thus, counts as hours worked.

Employers must ensure their employees are aware of the FLSA requirements by displaying an official poster outlining the FLSA requirements. Further, employers must also keep employee time and pay records.

For more information or questions about the FLSA, contact an RMN attorney today at or 412-626-5626.

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