Our nation so richly endowed with natural resources and with a capable and industrious population should be able to devise ways and means of insuring to all our able-bodied working men and women a fair day's pay for a fair day's work.

[Message from Franklin D. Roosevelt to the Congress (May 24, 1937)]

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The Fair Labor Standards Act. The Fair Labor Standards Act (“FLSA”) was passed in 1938, with the support of President Franklin D. Roosevelt, in response to employee abuses prevalent during the Great Depression. It introduced the 40 hour work week, established a national minimum wage, and provided for time-and-a -half pay for overtime. It remains in effect today.  The FLSA permits employees to sue their employers for underpaid wages, liquidated damages equaling the amount of the underpayment (double damages) and attorney’s fees for violations.

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The FLSA applies to most employers, but not all of them. Generally, the FLSA applies to employers engaged in interstate commerce. However the interstate commerce test is a broad one, including employers who produce goods for interstate commerce, or those who handle, sell, or work on goods or materials that have been moved in or produced for interstate commerce.  For most employers, a test of not less than $500,000 in annual dollar volume of business applies (i.e., the Act does not cover enterprises with less than this amount of business).  It also applies to hospitals and most inpatient healthcare facilities, schools, colleges and government agencies regardless of whether they engage in interstate commerce.  For employees of the few employers not covered by the FLSA, New Jersey  wage and hour law offers parallel protection.

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Minimum Wage. With certain exceptions, The FLSA requires that employers pay non-exempt employees a minimum hourly wage. The federal minimum wage is $7.25 per hour. However, New Jersey has a higher minimum wage, currently $8.38 per hour, which New Jersey employers must pay.

However, the minimum wage does not apply to all types of employees. For example, waiters, or other employees who typically receive tips from customers are partly exempt from the minimum-wage requirement. Employers of “tipped” employees meaning employees that receive at least $30 per month in tips, may claim a “tip credit” towards its minimum wage obligation. Nonetheless, employers of tipped employees must still pay a minimum of $2.13 per hour by paycheck, and if an employee’s combined wages and tips do not equal the federal minimum wage, the employer is required to make up the difference.

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Overtime. Unless exempted, the FLSA requires that employees receive overtime pay at a rate not less than time-and-one-half of their regular pay rates for hours worked in excess of 40 hours in any work week.  For example if an employee’s regular pay rate is $10 per hour he or she must be paid at least $15 per hour for overtime. Note however that a “work week” under the FLSA does not necessarily begin and end on a Monday. An employer may define a workweek that begins on any day at any hour. However, averaging of hours for two or more weeks is not permitted.

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Hours Counted as Working Time. One way employers frequently violate the FLSA is by not paying employees for all the hours they worked. The FLSA covers all the hours an employee works, even if they were not requested or required by the employer. For example, if an employee voluntarily stays after regular work hours, even if she was not required or even asked to stay, she has to be compensated for those hours, and if appropriate, paid overtime.  Other time counted as work time for the FLSA may include waiting time, such as where an employee is required to be at work but is waiting for an assignment; on call time, where the employee is required to be on the employer’s premises or otherwise has their freedom significantly restricted; or short rest or meal breaks of twenty minutes or less.

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Misclassification/Exemption Abuse. Another way that employers frequently violate the FLSA is by misclassifying employees as exempt. There are numerous classes of employees to whom the FLSA does not apply. Among the exempted employees are “executive,” “administrative,” and “professional” employees. Employers may misclassify employees as being executive, administrative or professional in order to avoid paying them overtime.  However, an employer cannot avoid paying overtime by simply giving an employee an exempted title. It is the nature of the job that matters, not its name.

Firstly, to qualify for the executive, administrative or professional  exemptions an employee must be paid on a salary basis at least $455 per week (equivalent to $23,660 per year).

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Other ways employers may misclassify employees in an attempt to avoid the requirements of the FLSA include calling them interns or independent contractors when they are really garden variety employees.

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How We Can Help. If you believe that your employer is not paying you minimum wage, not paying you for all the hours you work, or not paying you overtime, we can help.  At Lawrence & Gerges we believe that a fair day’s pay for a fair day’s work is a core American value, and we have more than 20 years of employment law experience and the trial skills to represent you all the way from initial investigation through settlement or trial. We offer free consultations, and if you are comfortable with us, and we believe in your case, we offer contingent fee retainers, meaning you do not need to pay us up front, and we will only get paid if we recover money for you.

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