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Fair Labor Standards Act (FLSA)

The FLSA is a federal statute that establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting both full-time and part-time workers.  The statute also bars retaliation against employees for asserting their rights under the statute.

The FLSA applies to employers throughout the country, regardless of size, that engage in interstate commerce (generally, with at least $500,000 in annual business), including federal, state, and local governments.

As a general rule, covered workers are entitled to a minimum wage of not less than $7.25 per hour effective July 24, 2009.  Overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a work week.  Certain workers, e.g., executives, professionals, and commissioned salespersons, are exempted from the FLSA’s minimum wage and/or overtime requirements.  

Under the FLSA, employers of tipped employees (e.g., restaurant workers) may credit the tips toward part of the minimum wage requirement.  Employers of tipped employees must pay a cash wage of at least $2.13 per hour if they claim such a tip credit.  (Under New York law, the required cash wage for tipped workers is $5.00 or more.)  If an employee's tips combined with the employer's cash wage do not equal the minimum hourly wage, the employer must make up the difference.

So long as an employee is paid properly, the FLSA does not limit the number of hours in a day or days in a week that an employee may be required to work (except for child labor).  The FLSA does not require vacation, holiday, severance, or sick pay; meal or rest periods, holidays off, or vacations; premium pay for weekend or holiday work; fringe benefits; or a discharge notice, reason for discharge, or immediate payment of final wages to terminated employees.  These matters may be governed by state and local laws.

If an employee proves a violation of the FLSA, the remedies available under the statute include back pay, liquidated damages, attorney’s fees, and costs.  Compensatory damages and punitive damages are not available under the FLSA.

An individual alleging a violation of the FLSA may go directly to court and is not required to file an administrative complaint with either the EEOC or the U.S. Department of Labor beforehand.  The time limits for going to court are:  within two years of the alleged violation or, in the case of a willful violation, within three years.

Because the rules and procedures under the FLSA are complicated, an employee should discuss his or her complaints of pay violations promptly with a qualified employment lawyer.

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