By:  LINDSEY ONEILL, ESQ.

The Fair Labor Standards Act is a body of federal law (i) requiring the payment of a minimum wage for regular hours and premium pay for overtime hours; (ii) requiring certain records of employee work time and pay; and (iii) governing youth employment.

Minimum Wage: As of July 24, 2008, covered nonexempt workers are entitled to a minimum wage of not less than $6.55 per hour.  Effective July 24, 2009, the federal minimum wages goes up to $7.25 per hour.   State laws also set the minimum wage for work in that state.

Overtime Pay: After 40 hours of work in a workweek, overtime hours must be paid at a rate of at least one and one-half times the regular rate of pay.

Who's Covered? The FLSA covers all employees of all “enterprises” who engage in interstate commerce, produce goods for commerce, or work on goods that have been produced for or moved in commerce if the enterprise has an annual gross volume of sales made or business done of $500,000.

Also, regardless of the dollar amount of annual business, the FLSA covers the following businesses: hospitals; institutions primarily engaged in the care of the sick, aged, mentally ill, or disabled who reside on the premises; schools for children who are mentally, or physically disabled or gifted; preschools, elementary, and secondary schools and institutions of higher education; and federal, state, and local government agencies.

Keep in mind that even if an employer is not covered by the FLSA, some of its employees may nevertheless still be covered to the extent they engage in "commerce" or engage in the "production of goods for commerce." This test is applied on an employee-by-employee basis.  An employee is engaged in commerce when participating in the actual movement of commerce. Therefore, employees in the telephone, radio, transportation, and shipping industries are covered by the FLSA.[FN2] Employees who maintain, repair, or improve such things as railroads, highways, and airports are engaged in commerce, as are employees who provide electricity, fuel, or water to the instrumentalities of commerce.[FN3] Employees are also engaged in commerce if they use instrumentalities of interstate commerce, such as the mail or telephone, to communicate across state lines in their work.[

Finally, the FLSA covers certain employees who wouldn't otherwise be covered... i.e. even though they are not employed by covered employers and are not engaged in commerce or in the production of goods for commerce.  For instance, the FLSA specifically applies to domestic service workers, such as day workers, housekeepers, chauffeurs, cooks, or full‑time babysitters, if they receive at least $1,500 (2007) in cash wages from one employer in a calendar year, or if they work a total of more than eight hours a week for one or more employers.

Exemptions From Coverage: Certain employees may be exempt from provisions of the FLSA.  Employees may even be considered partially exempt and partially non-exempt based on varying duties performed in a week.  According to the DOL website, common exemptions include:

Commissioned sales employees of retail or service if more than half of the employee's earnings come from commissions and the employee averages at least one and one-half times the minimum wage for each hour worked;

Computer professionals: Certain computer professionals paid at least $27.63 per hour;

Drivers, driver's helpers, loaders and mechanics employed by a motor carrier if the employee's duties affect the safety of operation of the vehicles in transportation of passengers or property in interstate or foreign commerce;

Farmworkers employed on small farms;

Salesmen, partsmen and mechanics employed by automobile dealerships;

Seasonal and recreational establishments;

Executive, administrative, professional and outside sales employees: (as defined in Department of Labor regulations) and who are paid on a salary basis.

Other categories of employees:  See other exempt employees by category on the Department of Labor's website here.

Recordkeeping Requirements: Employers must display an official poster in the workplace outlining the provisions of the FLSA.  Employers can obtain a poster at no cost either from their local Wage and Hour Division Offices or by downloading it here.

The FLSA doesn't require employee information to be kept in a particular fashion, but the following information must be kept about the employee, the hours worked and the wages earned:

1. Employee's full name and social security number.
2. Address, including zip code.
3. Birth date, if younger than 19.
4. Sex and occupation.
5. Time and day of week when employee's workweek begins.
6. Hours worked each day.
7. Total hours worked each workweek.
8. Basis on which employee's wages are paid (e.g., "$9 per hour", "$440 a week", "piecework")
9. Regular hourly pay rate.
10. Total daily or weekly straight-time earnings.
11. Total overtime earnings for the workweek.
12. All additions to or deductions from the employee's wages.
13. Total wages paid each pay period.
14. Date of payment and the pay period covered by the payment.

Penalties for Failure to Comply with the FLSA: The Department of Labor enforces compliance with the FLSA in a variety of ways including Wage and Hour investigations, recommending changes in employment practices, requiring the payment of any back wages due to employees, and even assessment of civil and criminal penalties.  Repeated, willful violations of the FLSA  may even result in imprisonment.

For more information about the FLSA, as well as state wage and hour laws, contact a labor and employment attorney in your area today.

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