Employment Legal Questions Some of the employee rights areas are quite complex, and cannot be adequately covered in general FAQs. Further detail and clarification may be obtained by contacting Harrell & Harrell. Below you will find a helpful collection of some of the most common questions that may serve as an introduction. Let an experienced personal injury attorney, who will represent your interests, advise you before you make any decisions. FAQs – EMPLOYMENT LAW Click on any question below to see the answer. The Fair Labor Standards Act 1) What is the FLSA? ANSWER: FLSA is short for Fair Labor Standards Act. This is the federal law that sets standards for minimum wage, overtime pay, child labor and record-keeping that must be followed by most employers. In general, an employer must pay an employee overtime pay, at a minimum of 1 1/2 times regular pay, for all hours worked over 40 hours in a work week, unless that employee is "exempt." 2) How do I enforce my FLSA rights? ANSWER: You can either: contact the U.S. Department of Labor ("DOL"), or file a private lawsuit. If you contact the DOL and file a complaint, they do not always prosecute, so you may not receive your deserved unpaid wages. Plus, if the DOL does enforce your rights, you may not get paid the liquidated or double damages that you are entitled to under the FLSA. Work 3) What activities are considered "work"? ANSWER: In general, hours worked include all the time during which an employee is required or allowed to perform work for an employer, regardless of where the work is done. The courts have defined hours worked, under the FLSA includes all time spent performing job-related activities which: genuinely benefit the employer the employer "knows or has reason to believe" are being performed by an employee and the employer does not prohibit the employee from performing. 4) What is the work week standard? ANSWER: The FLSA defines a work week as a period of 168 hours during seven consecutive 24-hour periods, but the employer establishes what day and what hour the work week begins. The FLSA does not standardize the number of hours in a day or the number of days in a week that an employer may have an employee work. Therefore, an employer may adjust employee work schedules within a specific week to keep an employee from working FLSA overtime. For example, if nonexempt employees work "extra" time early in a work week, the employer may send them home later in the same work week so the total hours actually worked in that week will not exceed 40. Most importantly (in general), EACH WEEK STANDS ALONE. Work time may not be "averaged" from work week to work week. So, for example, an employee who works 46 hours in week one, followed by 34 hours in week two, is entitled to 6 hours of overtime pay for the first week, even though the average for the pay period is 40 hours per week. Two limited exceptions to this rule are some medical care employees, police officers and fire fighters, who are permitted to be paid on special "alternative work periods." Minimum Wage 5) What is the minimum wage? ANSWER: According to Federal law, FLSA requires that as of July 24, 2009, employers must pay most employees a wage of at least $7.25 an hour according to Federal law. Some states, however, have set a higher minimum wage. Florida has a minimum wage of $7.25 an hour. 6) If I am a tipped employee, what is my minimum wage? ANSWER: If you claim a tip credit, then your employer must pay you a direct wage of at least $2.13 an hour. However, if your tips and direct wage do not add up to the FLSA set minimum wage of $7.25 an hour, then your employer must make up the difference. Overtime 7) What is overtime? ANSWER: For most employees, overtime is any and all hours worked over 40 hours in one work week. 8) How much should overtime pay? ANSWER: The FLSA sets the minimum overtime pay at time-and-a-half of an employee's regular rate of pay. For example, if you make $10 per hour then you should be paid $15 per hour for all hours you work over 40 hours in one work week. (For employees whose normal pay is not an "hourly" rate, their regular rate requires converting pay to an hourly equivalent). Longevity pay, shift pay, and similar non-discretionary additional wages should generally be included in calculating the FLSA overtime rate. 9) Does it matter that I did not seek approval for overtime? ANSWER: Probably not. If your employer knew you were working overtime or reasonably should have known it, then you are probably entitled to be paid for the overtime. Many employers will tell employees that they will not pay for overtime that is not approved. However, if they know employees are working overtime, even if it is not approved, they are required to pay the employees for the overtime work. An employee's "failure to ask permission" for overtime is usually not a defense for an employer in an FLSA case. Off the Clock Work, Comp Time and Leave Time 10) I get Comp Time (Compensatory Time) instead of cash for overtime. Is this legal? ANSWER: Comp time instead of cash for FLSA overtime is not generally permitted in the private sector. A public sector (government) employer may pay (at least some) FLSA overtime with comp time. 11) My employer has me work off the clock quite often. Is this legal? ANSWER: Off the clock work is one of the more common FLSA violations. In general, you should be paid for all hours worked including pre-work meetings, required training classes or special meetings after hours or on weekends and even time spent either before or after work cleaning equipment. 12) How do I prove the amount of time I spend doing of-the-clock work? ANSWER: The FLSA requires employers to maintain records of the time spent by employees performing compensable activities (work). If an employer does not maintain the required records, the employee is entitled to recover, based on good faith, a reasonable and realistic estimate of the time worked. In other words, you get to estimate how many overtime hours you worked and the employer will have the burden to challenge the reasonableness of the employee's estimates. 13) Does Leave Time count as work time? ANSWER: No. Only hours an employee actually works count as compensable work time. This is true even if the leave hours are counted as work time for some other purpose such as pensions or for pay computations under employment agreements. Independent Contractor or Government Employee 14) How do I tell if I am an independent contractor? ANSWER: In short, if an "independent contractor" is economically dependent upon the employer, then that "contractor" is an employee and entitled to FLSA overtime. In determining whether an individual is indeed an "independent contractor" the courts will look at the nature of the relationship and not the name. They will determine the status of a "contractor" based on the following: How much control the employer has over the contractor as to the way the job is performed; How much the contractor has to invest in equipment and materials required for the job; The contractor's opportunities for profit and loss associated with the job and the company; The skill and initiative required in performing the job; The degree of permanency and duration of the job; The extent to which the contractors' services are integral to the company; The extent of independent business organization and operation of the contractor. The complexities of this area of Employee Rights and the uniqueness of each case often require the assistance of an attorney. 15) I am classified as an independent contractor. Am I entitled to overtime pay? ANSWER: Possibly. It depends if you are truly an "independent contractor" or not. If you are properly classified as an independent contractor, then you ARE NOT entitled to overtime pay from the company you contract with. However, if you are not an independent contractor, then you are an employee and ENTITLED to overtime under the FLSA. 16) I work for the government, am I covered by the FLSA? ANSWER: If you work for the local, state or federal government then you are covered by the FLSA, but with some exceptions. In addition, federal employees are regulated by the Office of Personnel Management, whose regulations are similar but not identical to the FLSA regulations. This is a unique and challenging area of Employee Rights, so if you work for a government agency and feel that you are owed back pay or overtime pay, contact us at Harrell and Harrell to help clarify and decipher your rights. Filing a Lawsuit 17) How do I bring an FLSA lawsuit? ANSWER: Hire an FLSA experienced attorney. Not all attorneys are familiar with this area of the law, so you should seek out attorneys with substantial FLSA experience. If you already have an attorney and they are not familiar with Employee Rights law, they should refer your case to one experienced in this area. 18) Is there a time limit to filing a suit? ANSWER: Yes. For most cases there is a 2-year statute of limitation to recovering back pay. However, in the case of willful violation it is 3 years. 19) Can I be fired if I sue my employer for unpaid wages or overtime? ANSWER: No. The FLSA prohibits employers from discharging or discriminating against in any way those who file a complaint or lawsuit or participate in any proceedings under the act. An employer who does so is in violation of the FLSA and is potentially subject to fines and/or criminal prosecution. Plus the affected employee is entitled to take legal action and seek reimbursement and possibly punitive damages. The courts have found discrimination to include: blacklisting employees who made FLSA claims, firing relatives, reducing job responsibilities, re-assigning the employee to unpopular job duties or shifts, disciplining the employee in a way outside of normal practices and refusing to hire those who made FLSA claims at other jobs. 20) If one employee files an FLSA suit, do all company employees participate? ANSWER: No, an employee does not have to or need to join an FLSA suit if they do not want to. Though if an employee does not join an existing FLSA suit or file one of their own, they will not receive any money as a result of the existing suit. However, similarly situated employees (others who are owed back pay) are permitted to join an existing FLSA case and many commonly do. 21) How long does an FLSA case take? ANSWER: It depends on the case but legal proceedings can often be slow. Most FLSA cases are filed in federal courts, and how fast a case can get to trial varies from district to district. However, at Harrell & Harrell we do not get paid until you get paid. 22) What do I get if I win? ANSWER: A win will result in you receiving unpaid wages or overtime and, in most cases, you are entitled to "liquidated damages." Plus, the FLSA requires the employer to pay your attorneys' fees and court costs. 23) What are "liquidated damages"? ANSWER: The FLSA entitles employees to receive, on top of back pay, liquidated or double damages which is awarded in lieu of interest. For example, if an employee is awarded $5,000 in unpaid wages, they may be entitled to get an additional $5,000 as liquidated damages, bringing the total amount received to $10,000. ANSWER: However, an employer can avoid paying liquidated damages if it shows that it has acted in good faith and that it had a reasonable basis to believe its practices complied with the FLSA.