In order for the FLSA to apply there must be an employment relationship between an employer and an employee. An employee, as distinguished from a person who is engaged in a business of his or her own, is one who, as a matter of economic reality, follows the usual path of an employee and is dependent on the business which he or she serves. There are exemptions. Some employees are exempt from the overtime pay provisions, some from both the minimum wage and overtime pay provisions and some from the child labor provisions. Exemptions are narrowly construed against the employer asserting them. Therefore, employers and employees should always closely check the exact terms and conditions of an exemption in light of the employee`s actual duties before assuming that the exemption might apply.
The Fair Labor Standards Act (FLSA) sets minimum wage, overtime pay, equal pay, record keeping requirements and child labor standards. As of December 2000, workers covered by the FLSA are entitled to the minimum wage of $5.15 per hour and overtime pay at time and onehalf rate of pay after 40 hours of work in a workweek. States can set minimum wages higher for their state, but not lower. Various minimum wage exceptions apply under specific circumstances.
For covered, nonexempt employees, the FLSA requires overtime pay at a rate of not less than one and onehalf times an employee's regular rate of pay after 40 hours of work in a workweek. Some exceptions to the 40 hours per week standard apply under special circumstances to police officers and fire fighters employed by public agencies and to employees of hospitals and nursing homes.
Some states have also enacted overtime laws. Where an employee is subject to both the state and Federal overtime laws, the employee is entitled to overtime according to the higher standard (i.e., the standard that will provide the higher rate of pay).
Extra pay for working weekends or nights is a matter of agreement between the employer and the employee (or the employee's representative). The FLSA does not require extra pay for weekend or night work. However, the FLSA does require that covered, nonexempt workers be paid not less than time and onehalf the employee's regular rate for time worked over 40 hours in a workweek.
The FLSA does not require breaks or meal periods be given to workers. Some states may have requirements for breaks or meal periods. If you work in a state which does not require breaks or meal periods, these benefits are a matter of agreement between the employer and the employee (or the employee's representative).
The FLSA has no provisions regarding the scheduling of employees, with the exception of certain child labor provisions. Therefore, an employer may change an employee's work hours without giving prior notice or obtaining the employee's consent (unless otherwise subject to a prior agreement between the employer and employee or the employee's representative).
The FLSA has no requirement for notice to an employee prior to termination or layoff. In some situations, the WARN Act provides for notice to workers prior to layoff. Some states may have requirements for employee notification prior to termination or layoff.
The FLSA does not define fulltime employment or parttime employment. This is a matter generally to be determined by the employer. Whether an employee is considered fulltime or parttime does not change the application of the FLSA.
Pay raises are generally a matter of agreement between an employer and employee (or the employee's representative). Pay raises to amounts above the Federal minimum wage are not required by the FLSA.
The FLSA does require that employers keep accurate records of hours worked and wages paid to employees. However, the FLSA does not require an employer to provide employees pay stubs.
The FLSA does not limit the number of hours per day or per week that employees aged 16 years and older can be required to work.
The FLSA does not require performance evaluations. Performance evaluations are generally a matter of agreement between an employer and employee (or the employee's representative).
The FLSA has no requirement for double time pay. This is a matter of agreement between an employer and employee (or the employee's representative).
With the exception of certain federal employees, the administration and enforcement of the FLSA is the responsibility of the Department of Labor`s Wage and Hour Division of the Employment Standards Administration (ESA). The FLSA can be enforced by private employee lawsuits or by actions taken by the Department of Labor. The Department of Labor can also seek injunctive relief. Should an employer lose a case in court, employees generally collect back pay and liquidated damages in the amount of back pay (double damages). Attorney fees are also recoverable. Ignorance of the law is no defense for employers. There is a twoyear statute of limitations. There is a threeyear limit if a willful violation.
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