Frequently Asked Questions
The Fair Labor Standards Act (“FLSA") – The FLSA was passed in 1938, it is America’s basic law governing Employment Practices. The FLSA sets the minimum wage and contains standards as to how and when employers must pay overtime. President Franklin Roosevelt’s message to Congress on the FLSA captures the intent of the Act, “Our nation so rich with natural resources and with a capable and industrious population should be able to devise ways and means of ensuring to all our able-bodied working men and women a fair day’s pay for a fair day’s work.”
Fair Day’s Pay for a Fair Day’s Work – The FLSA guarantees that almost all workers will receive the minimum wage ($7.25 as of January 2018), and that all workers, unless they meet an exemption, are entitled to overtime pay for all hours worked over forty (40) hours in a workweek.
The simple rule for what work is payable is that, time spent performing work that is controlled or required by an employer and performed for the employer’s benefit is payable.
Short rest breaks that are twenty (20) minutes or less, must be paid, regardless of any contractual provision in an employer’s personnel rules. Lunch Breaks do not have to be paid, so long as the employee has at least 30 minutes or more to eat and does not perform any work during the break. If the employee works through their lunch, either voluntarily or involuntarily, then the lunch break must be paid for.
Work performed from home, answering emails or phone calls is generally, considered to be payable work.
Whether time spent being on-call is payable is a highly contentious question. Courts generally, look to see how controlled the on-call time is, and whether an employee is able to make use of the time for non-work purposes.
Generally, time spent traveling from an employee’s home to the place of work or vice-versa is not compensable. However, if the employee drives from their home to a work yard and then must drive to another job site, the time spent driving from the yard to the other work site is compensable.
Time spent setting up a computer so that you can perform your job, inspecting a vehicle before starting your route, or attending mandatory meetings must be paid for and you should be clocked in for these times.
An employer must pay overtime for all hours worked over forty (40) in one workweek period unless the employee meets an FLSA exemption.
Overtime is based off time and one-half your regular rate. Your regular rate, however, is not just your hourly wage. Your regular rate must include all commissions earned as well as non-discretionary bonuses.
So, if you are paid $10.00 per hour, earned $1,000 in commissions that week, and you worked fifty (50) hours that week then your regular rate is $30.00 an hour and your overtime rate is $45.00 an hour. The commission is divided by your total hours worked and then added to your hourly rate. $1,000(commission)/50(hours) = $20.00 + $10.00 (hourly pay) = $30.00 (regular rate). So your overtime is then based off the new regular rate. $30.00 x 1.5 = $45.00.
Similarly, bonuses that are non-discretionary must also be included in the regular rate. Non-discretionary bonuses are bonuses that are automatically granted to an employee if they meet well-defined criteria (ex. sales quota) and managers do not have the discretion to grant or deny said bonus.
Generally, “blue collar” workers do not meet the requirements for any FLSA exemption and must be paid overtime. If your work primarily involves manual labor, then you should be paid overtime.
Even if you are paid only by commission, a day rate, or a piece rate you are still owed overtime for all hours worked past forty (40) in one work week. The only employees who do not have to be paid overtime are employees who meet the FLSA exemptions, some of which are listed below the Basic Overtime Exemptions.
True Independent Contractors are not covered by the FLSA; however, it is very common for businesses to mislabel employees as independent contractors in order to avoid paying overtime and other benefits to the employees.
People frequently mislabeled as Independent Contractors
Welders, field laborers in the Oil and Gas Industry, Salesmen, Construction Workers, and Remote at-home Coders. Regardless of whether you were made to sign an agreement labeling yourself as an independent contractor, you are an employee unless you are truly in business for yourself. If you do not set your own hours, you do not choose which jobs you work, you are not allowed to complete a job in your own way, or you can be subject to discipline by the hiring company then you may be owed overtime.
Even if you are a salaried employee you are still must be paid overtime for all hours worked over forty (40) in one workweek. The only employees who do not have to be paid overtime, are employees who meet a FLSA exemption, some of which are listed below.
This list covers the most basic exemptions to Overtime requirements, it is by no means an exhaustive list. There are dozens of other smaller exemptions but the exemptions listed below are the most commonly used.
To qualify for the Executive Exemption the employee must earn a salary of at least $23,660 per year and their primary job duty must relate to managing the company and/or its employees.
People frequently mislabeled
Assistant managers and managers. Many times, these individuals’ actual jobs are so micromanaged that they do not have the authority to qualify for the exemption. If you have been told you do not qualify for overtime because you are a manager or assistant manager, but you do not have the authority to do anything other than follow a script or strict company policy/guideline, then you may have a claim for unpaid overtime.
To qualify for the Administrative Exemption the employee must earn a salary of at least $23,660 per year and their primary job duty must relate to managing the business’s operations.
People frequently mislabeled
IT personnel, Managers, Office Workers, and Administrative Personnel. This is the broadest and most commonly used exemption. If you have been told you are administratively exempt but you do are not able to exercise independent judgment in how you perform your job you may have a claim for unpaid overtime.
To qualify for the Professional Exemption the employee must earn a salary of at least $23,660 per year and have job duty that requires specialized knowledge.
People frequently mislabeled
Mechanists, Welders, Chefs, IT Personnel, Assistants, and Employees who have a “skilled trade”. If your work is routine, largely governed by predetermined policies/guideline, or does not require any specialized knowledge then you may have a claim for unpaid overtime.
To qualify for the Outside Sales Exemption employees must meet two requirements. Their primary job is to make sales, and they must spend most of their work time away from the office.”
People frequently mislabeled
Sales Representative, promoters, and drivers who are required to “upsell.” If you are told you are exempt through this exemption but you rarely leave the office, you work off of a premade customer list, you only sell to existing customers, or you do not deal directly with the customer then you may have a claim for unpaid overtime.
Retaliation occurs when an employer punishes an employee for engaging in a protected activity, such as starting a lawsuit, joining a lawsuit or filing a report with HR. This punishment does not have to be outright termination of the employee. Anything from lowering the employee’s wages, lowering the employee’s work hours, changing the employee’s job function can be considered retaliation. Any action an employer takes that would deter an employee from protecting their rights is generally considered retaliation and is illegal. Once an employee engages in a protected activity they are protected under Federal Anti-Retaliation Laws.
The law forbids discrimination when it comes to any aspect of employment, such as: hiring, firing, promotions, demotions, pay, job assignments, layoffs, training, fringe benefits, pre-employment inquiries, interviews, job referrals, performance evaluations, disciplinary practices, or any other term of employment.
The law also forbids harassment based on the classes listed below, under Types of Violations. Harassment can include: slurs, offensive remarks, offensive symbols, offensive physical contact, and threats. The law does not protect against offhand comments or isolated incidents that are not very serious. Harassment is illegal when it is so frequent or so severe that it creates a hostile work environment or negatively affects your job.
Age Discrimination involves treating someone unfairly because of their age. The Age Discrimination in Employment Act protects people who are over 40 from discrimination in the workplace. This type of discrimination can be committed by a supervisor, co-worker, or someone who is not an employee of the employer, such as a client or customer.
Common forms of discrimination based on age include
The decision to not hire older workers, harassment, and the decision to replace older workers with younger workers.
Disability Discrimination involves treating someone unfairly because the person has a disability, has a history of a disability (such as cancer that is in remission), or the person is perceived to have a disability, even if they do not actually have a disability. The law also requires that employers provide a reasonable accommodation to an employee or potential new hire with a disability, so long as doing so would not be overly burdensome for the employer.
Common forms of discrimination based on a person’s disability include
Refusing to hire people with disabilities, refusing to provide reasonable accommodations, harassment, or terminating employees who request a reasonable accommodation.
Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on a person’s race (such as a person’s physical appearance or color) and/or ethnicity (such as a person’s ancestry or culture). This type of discrimination can occur when the perpetrator and victim are the same race or ethnicity.
Common forms of discrimination based on race or ethnicity include
Only hiring people of a certain color or harassment.
Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on a person’s National Origin, that is based on the country or part of the World a person is from or perceived to be from. This type of discrimination can be based on a person’s appearance, name, language, or accent.
Common forms of discrimination based on national origins include
Hiring only citizens or permanent residents, imposing unnecessary English only rules, or harassment.
Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on a person’s religious beliefs and practices. This type of discrimination can occur when an employee suffers negative employment decisions or harassment because of their religious beliefs or because the employee requested reasonable accommodations for a religious practice (such as time off from work or a change to the dress code).
Common forms of discrimination based on a person’s religion can include
Harassment, denial of a reasonable accommodation, or being treated unfairly by management.
Title VII of the Civil Rights Act of 1964 and the Equal Pay Act prohibits discrimination in the workplace based upon a person’s gender. This type of discrimination can occur when the perpetrator and the victim are the same gender. This type of discrimination is very broad and includes discrimination based on physical attributes as well as personal decisions, such as conformity with gender stereotypes.
Common Forms of discrimination based on a person’s gender can include
Paying employees of a certain gender less than employees of the other gender who perform the same job, establishing dress codes solely for the purpose of sexualizing one sex but not the other, excluding men or women from certain jobs because they do not fit a certain gender stereotype (they are too masculine, or they are too feminine for this job), or harassment.
The Pregnancy Discrimination Act prohibits treating pregnant women or women who recently gave birth differently from other employees. If the employer would give other workers with a temporary disability light work or time off, then they must do the same for pregnant employees. Pregnant employees may also be eligible for FMLA leave for pregnancy related medical conditions, childbirth, and for a period following childbirth.
Common forms of discrimination based on a woman’s pregnancy can include
Denying a pregnant woman time off, firing women who become pregnant, or harassment.
Currently, there is no federal law that prohibits discrimination in employment based on sexual orientation, however many states and cities have passed laws protecting employees from adverse employment decisions and harassment based on their sexual orientation. This issue is currently in flux and depending on where you live you may or may not be protected. If you believe you have been discriminated against or harassed at work because of your sexual orientation, contact our office so we can help determine what laws may protect you.
Common forms of discrimination based on a person’s sexual orientation can include
Harassment, refusing to hire people of a certain sexual orientation, or terminating all people of a certain sexual orientation.
Many claims involving discrimination require that claims be filed with the EEOC and/or equivalent state agency before a lawsuit may be filed. These filing requirements often have strict time limits, sometimes they require a victim to file a report in as few as 180 days! If these filing deadlines are not met your entire claim, no matter how severe, may be time barred and you may not be allowed to pursue a case. If you are worried you may have suffered employment discrimination and you need help filing a claim with the EEOC or your local state equivalent, please contact our office and we can help guide you through the process.
If you believe you have suffered discrimination in your employment, it is important to document all instances of discrimination. Keep personal notes at home that document the following: the date and time of the incidents, who was present for the incident, exactly what occurred, what was said by all the people there, and whether other employees similar to you have also encountered similar actions as you. You should save copies of: emails, employee handbooks, write ups, pictures, and any other documents from your employer.
If you are facing harassment at work or you feel as though your co-workers are making inappropriate comments, let your supervisor know. Many of the laws that prohibit discrimination require employees to speak up against the discrimination.
If your employer has a policy for reporting discrimination or harassment, you must file a report in writing through the proper procedures. Be sure to keep a copy of the submitted report for your own personal record. Your employer is required by law to investigate and to take seriously all reports of discrimination.
The lawyers at Anderson Alexander are always here to help you whenever you are being discriminated against. We provide free and confidential case reviews so that you can understand what your rights and options are, without fear of retaliation. We can guide you through the entire process and ensure your rights are protected.