The federal law guarantees workers basic wage standards which apply to “nonexempt” workers. Congress periodically changes the minimum hourly wage due to nonexempt workers under the FLSA. Visit the U.S. Department of Labor to see today’s required minimum wage and for more detailed information. Simply, the law requires a minimum wage for all hours worked and overtime pay for all hours worked over 40 hours in a workweek. In practice, however, FLSA can be quite complex and employees may not even realize that they are being denied pay to which they are entitled. Issues arise even out of seemingly basic questions, such as figuring out when “work” begins and ends, how to count hours, and who is covered.
Here are some common wage and hour violations:
- “Off-the-clock” work – Responding to work emails or phone calls, while off-the-clock or outside normal working hours, usually qualifies as work for which an employee should be paid.
- Prep work — Putting on protective gear or setting up a restaurant before opening, can qualify as payable time.
- Misclassification – employees vs independent contractors Employees are entitled to overtime, but independent contractors are not. There is a multi-part test for determining which label applies to a worker and if an employer makes a mistake, they could be liable for unpaid wages.
- Misclassification – exempt vs non-exempt: Employers classify employees as “exempt” and “nonexempt”. “Nonexempt” employees are entitled to the minimum wage and overtime; “exempt” employees are not. “Nonexempt” employees include manual laborers, workers who perform work involving repetitive operations with their hands, physical skill and energy. Examples include non-management employees in production, maintenance, and construction, such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, and more. First responders are also entitled to overtime. Some categories of employees are exempt, such as executives, managers, administrative employees, professionals, certain computer employees, and more. Classifying an employee as exempt, or not exempt, may sound easy, but employers frequently make mistakes. Those mistakes are one of the most frequent types of FLSA violations.
- Compensatory Time: Compensatory time, or “comp time” is when an employer “pays” an employee for overtime work by giving them credit for time off rather than paying them in cash at the overtime rate (time-and-a-half). FLSA limits employers’ ability to provide non-exempt employees comp time instead of overtime pay: (1) private sector employers may not give comp time instead of overtime; (2) state and local governments can provide comp time pursuant to a collective bargaining agreement or similar agreement with a union or employee/representative; (3) non-exempt federal employees may not be forced to accept (but can, with some exceptions, choose) comp time in lieu of overtime pay; (4) certain legislative branch employees may not be paid in comp time.
- Unauthorized Overtime – An employer must pay an employee for all time they work, even if the work was unauthorized. Even though an employer must pay its employees for all time worked – even unauthorized overtime – the employer can also discipline or fire employees for working unauthorized overtime.
- Not reporting the correct number of hours worked – Automated time records can cause mistakes. Employees should be able to modify their time cards to ensure they are accurate. Incorrect time records can result in an employee working more than 40 hours but not getting paid for it.
- “Per diems” – When an employee travels for work, the employers can reimburse the employee actual expenses through receipts. Alternatively, the employer can pay its employees “per diems” for work-related travel expenses. Sometimes, these “per diems” can count towards the employee’s regular rate and can be the basis for overtime.
An employer can face strong consequences if they fail to comply with minimum wage and hour laws. Not only can they face liability for the unpaid wages, but they can easily also face fines or double back-pay and attorney fees.