FAIR LABOR STANDARDS ACT (FLSA)

Although the law does not provide a specific form, the following information must be kept for most employees subject to the FLSA. Failure to maintain adequate records can subject a business to liability. 

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.

The FLSA does provide certain exemptions from overtime and minimum wages. For example, white collar exempt employees may be paid a salary for all hours worked in a week if certain conditions are met. However, many unwary employers misclassify workers as exempt when they should be paid overtime. Likewise, companies regularly misclassify employees as "Independent Contractors" to avoid the costs of paying certain taxes and health benefits. Both types of misclassification are common mistakes and can subject an employer to up to three years of back pay plus an equal amount in liquidated damages. For example, if a court decides a salaried employee was misclassified and entitled to $100 in additional overtime per week, that employee could claim up to $30,000 in damages plus attorneys' fees and costs (based on a 50 week calendar and three year statute of limitations). In other words, it pays do it correctly the first time. 

In today's tech-savvy work environment, many employees are free to work from home or work on the road. Likewise, many employers are using sophisticated technology to track productivity. Often times employers and employees will have agreements about the amount of work to be performed outside the physical workplace. When an employee works more than the agreed amount of time but is not paid for it, and the employer has knowledge of the work being performed, it's a recipe for an FLSA violation. 

Off-the-Clock violations are routine because employees equipped with computers and company cell phones or other electronic devices are never truly off-the-clock unless they're unplugged. 

Many employers are surprised to find that the FLSA contains an anti-retaliation provision. That means that employees who complain about pay violations are protected from retribution. In other words, a worker cannot be fired just because the worker complained (or participated in an investigation) about wage and hour violations. Like violations of other federal civil rights lawyers, there are special damages for workers who are fired or intimidated for opposing a wage and hour violation, including but not limited to lost back pay from the date of termination. 

Many people believe that a "deal is a deal" when it comes to employment. Employers will make promises when they hire someone, and the employee will accept the benefits of that promise - for example, a promise to pay for meals, lodging, gas, travel expenses and per diem allowances. However, the FLSA does not honor contracts that are made unlawfully. This means that employers who fail to keep adequate records of certain deductions or who receive "kick backs" from the employees pay (i.e. training fees), could be liable under the law. 

Special rules apply to employees who are paid on a commission basis and many times a local or state law will intersect with the federal requirements to protect employees who are fired (or leave their job) but who are still owed commissions and/or a final paycheck. Companies who refuse to pay commissions earned or final paychecks, no matter how nefarious they believe a worker to be, are asking for legal trouble.