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Employers Frequently Violate the FLSA

07/01/2017

The Fair Labor Standards Act (FLSA) is an important piece of employment legislation that has forever improved the lives of working Americans by establishing a national minimum wage, mandating the payment of overtime wages for most employees who do not fall under certain exempt categories and regulating child labor on a nationwide basis. Also, the FLSA prohibits your employer from retaliating against you for complaining about any about wage and hour violations.   
 
The FLSA was passed in 1938, and thus has been in existence for almost 80 years.  Yet, perhaps because the law is arcane, detailed and applies to so many workers, employers regularly and sometimes unwittingly violate the FLSA more often than any other employment statute. Below are some of the most common mistakes employers make that workers should monitor and notify their employers about:

1. Claiming Salaried Employees Are Not Entitled To Overtime

Many employers are under the mistaken belief that merely labeling an employee salaried means that the employee is not eligible for overtime.  However, only employees earning wages on an hourly basis are entitled to overtime pay. In order for a salaried employee to be exempt from receiving overtime, the employee must qualify for one of the specific exemptions provided by the FLSA. These exemptions include the “executive,” “administrative,” and “professional” exemptions, among others. Each salaried employee must be individually evaluated to see whether their duties exempt them from the overtime rules. If no exemption applies, the employee must be paid overtime wages for all hours worked over forty (40) in a workweek.  The FLSA also contains very specific regulations regarding how employer must pay an employee on a salary basis in order to qualify.

2. Misclassifying Employees In Order To Avoid Paying Overtime

Employers sometimes try to avoid paying overtime by giving an employee an important sounding title, such as “manager” or “supervisor,” to make it  appear  that the employee fits into one of the narrow exemptions under the FLSA. However, whether an employee must be paid overtime does not depend on a job title or even on the job duties listed on a written job description. Rather, the actual job duties that the employee performs determines the employee’s entitlement to overtime wages. If the responsibilities of the employee do not fall within one of the FLSA exemptions, the employee is entitled to be paid all overtime wages earned, regardless of his or her title.


3. Failing to Pay Employees for Short Breaks and Certain Meal Times 

An employer must pay its employees for all hours worked. Generally, an employer must pay an employee for certain short breaks. It is permissible for an employer to dock their hourly employees for a 30 or 60-minute meal break each day, so long as the employee is completely relieved from duty and is not performing any work whatsoever during this meal break. The FLSA requires that the employee be paid for meal time if, during this period, the employee is required to continue performing work duties or sit at a reception desk or is not completely free from performing his or her job obligations. If automatic deductions are made for meal times but the employee is not actually freed from all work during this time, the employer must credit back the time to the employee.

4. Refusing To Pay Overtime If The Employee Fails to Get Approval In Advance

Often employers have a written or oral rule that they will not pay overtime to any employee that does not seek and obtain advanced permission to work overtime. The FLSA, however, does not distinguish between approved and non-approved overtime. Therefore, if the employee works overtime hours, the employer must pay for that overtime, even if the overtime work was not pre-approved by the employer.  These policies, however, do not violate the FLSA and employees that do not follow policy and seek advance approval for overtime may be subject to discipline.

5. Claiming Employees Have Waived Their Right To Overtime


Some employers incorrectly assert that an employee can waive their right to compensation for overtime hours worked. The overtime requirement, however, may not be waived by agreement between employer and employee. An agreement that a worker will only be paid for eight (8) hours a day or only forty (40) hours a week will is invalid. If the employee works more than more than 40 hours in a workweek, the employee must be paid for all hours worked and receive an overtime premium for hours worked over 40.

6. Averaging Workweeks So No Single Week Shows More Than 40 Hours Worked

Employers are not allowed to minimize overtime pay by averaging an employee’s hours over two (2) or more workweeks in order to avoid having more than forty (40) hours in either workweek. For example, if an employee works thirty (30) hours in one workweek, and fifty (50) hours in the next, the employer may not average the hours into two (2) forty (40) hour workweeks. The employer must pay ten (10) hours of overtime for the fifty (50) hour workweek.

7. Failing to Pay for Time Spent in Meetings or Training 

As stated above, an employer must pay its employees for all hours worked. That means that if an employer requires employees to attend meetings or training sessions, in addition to regular work hours, the employer must pay for employees for attending those required meetings or training sessions, and must pay an overtime premium if the employees' hours exceed 40 in the workweek as a result. 

8. Requiring Employees to Work “Off-the-Clock”

Employers sometimes fail to pay employees if the employee arrives to work early and begins working before the shift begins, or stays after regular work hours to complete a task or paperwork. This “pre" and "post"-work time counts as work time and must be included as part of the employee’s compensation under the FLSA.  

9. Offering Comp Time Instead of Paying Overtime Wages

Some employers wrongly assume that they can satisfy their overtime obligations by offering employees "comp time" for hours worked over 40 to avoid paying an overtime premium for those hours.  If This practice is acceptable for salaried exempt employees.   However, for everyone else, the FLSA forbids this practice and insists on overtime pay.

10. Misclassifying Workers As Independent Contractors 


Many employers mistakenly believe that they can control costs and head count restrictions by simply treating workers as independent contractors.  Misclassification of workers as “contractors” can expose employers to liability for tax obligations and employee benefits, along with minimum wage and overtime violations.  Calling someone an “independent contractor” does not make them and independent contractor, and under the latest regulations and interpretations, most individuals classified as independent contractors who do not own their own business and who are subject to certain other restrictions are improperly classified and entitled to minimum wage and overtime pay. 
 
Employees often complain about being overworked and underpaid. When it comes to getting properly compensated for extra hours, those complaints may have legal merit. If your employer is engaging in any of the above behaviors and you think you are being denied proper pay, request a consultation now.



   Related Pages

Fair Labor Standards Act Compliance