Archive for the ‘FLSA’ Category

Under the Fair Labor Standards Act, you are entitled to be paid time and a half for each hour worked over 40 in a given week. When computing these hours, the employer should normally include off the clock training.

Following an investigation by the U.S. Department of Labor’s Wage and Hour Division, Tulsa-based United States Beef Corp., doing business as Arby’s, has agreed to pay $56,838 in back wages to 759 current and former hourly paid managers in Arkansas, Illinois, Kansas, Missouri and Oklahoma.

Investigators found that at 255 Arby’s locations in the five states, bonuses paid to managers were not included in regular rates of pay when overtime was computed. The Fair Labor Standards Act requires that covered employees be paid time and one-half their regular rates, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week.

Additionally, managers in training at an Arby’s in Wichita, Kan., were required to review training material outside of their work hours and not properly compensated for this time. Under the FLSA, employees must receive at least the federal minimum wage of $7.25 for all hours worked.

“We are pleased that this company has agreed to change its practices to comply with the Fair Labor Standards Act,” said Cynthia Watson, regional administrator for the department’s Wage and Hour Division in the Southwest. “The Wage and Hour Division actively pursues systemic violations by multi-state employers wherever employees are affected by bad practices.”

If you believe you have not been paid properly by your employer speak to the U.S. Department of Labor or an attorney that specializes in wage and hour law. Feel free to call Scott Behren and the Behren Law Firm for a free consultation.


The way that some McDonalds employees in West Virginia were being treated makes me want to grimace (and I’m not referring to the big purple guy).

Three former employees are suing McDonald’s after they claim it violated the Fair Labor Standards Act for failing to pay minimum wage to employees.

Richard Estes, Gary M. Martin Sr. and Jeremy Thompson were employed at McDonald’s, according to a complaint filed Feb. 24 in the United States District Court for the Southern District of West Virginia.

Estes was employed from Aug. 1, 2006, until Nov. 1, 2008; Martin was employed from Dec. 1, 2008, until March 18, 2010; and Thompson was employed from June 1, 2009, until Dec. 14, 2009, according to the suit.

The former employees claim McDonald’s knew or should have known that its employees were illegally not paid minimum wage. They also claim they frequently worked more than 40 hours per week, but were never paid wages for hours actually worked in excess of 40 hours per week.

The defendant made several wage and hour violations, including telling the manager that employees were not to be paid for more than a set number of hours each week; for taking employees “off the clock,” when that set number of hours were met; requiring employees to work off the clock for up to or more than 40 hours per week; and requiring employees to work off the clock and not paying overtime, according to the suit.

If your employer is making your work off the clock, not paying you the minimum wage and not paying your for hours of over 40 hours per week, you may be owed additional wages and overtime. Feel free to call Scott Behren and the Behren Law Firm for a free consultation.


Under Florida law, the general rule is that an employee who quits their job is not entitled to receive unemployment benefits. However, there is an exception to this general rule where the employee left with good cause attributable to the employer.

Dennis Martinez was a full time car salesman for Ford Midway Mall. Martinez was originally hired on a commission basis, but some time into his employment, his position was changed to where he received a draw against his commissions. When business declined and he was earning no commissions, based upon the employer draw, he would owe the employer money each week. As of the date of his resignation, Martinez owed over $2,000 to his employer due to these draws. Martinez expressed his dissatisfaction with this arrangement to his employer and resigned.

The unemployment referee determined that Martinez voluntarily quit without good cause of the employer. He further decided that because Martinez agreed originally to this draw policy, that he could not contest it a year later.

The Third District Court of Appeal reversed the determination of unemployment. The Court held that the unemployment laws “provides that an individual is not disqualified for unemployment benefits where the individual has “voluntarily left work with good cause attributable” to the employer. § 443.101(1)(a), Fla. Stat. (2009). “Good cause” includes cause attributable to the employer, which “as contemplated by the unemployment compensation law, describes that which would drive an average, able-bodied worker to quit his or her job.”

The Court held that the auto dealer was in violation of the Fair Labor Standards Act (“FLSA”) and the Florida Minimum Wage Act because Martinez was not getting paid the minimum hourly wage for the hours he was working for his employer. The Court held that the draw agreement used by the employer was in violation of the FLSA and Florida Minimum Wage Act. Moreover, the Court held that merely allowing them to pay under the draw policy, for a period of time did not result in a waiver of his legal rights under the FLSA.

The Court held that due to the employer’s violations of the FLSA and Florida Minimum Wage Act, Martinez had left his employment due to good cause attributable to the employer. The Court reversed the decision of unemployment and awarded Martinez his benefits.

The Opinion of the Third District Court of Appeal is here.

If you have questions about your right to receive unemployment benefits, feel free to call Scott Behren and the Behren Law Firm to discuss your legal rights.


Employees walk by them almost everyday and seemingly pay no attention, but they should. They spell out their rights and obligations under national and state employment laws. What are they?

State and federal laws impose numerous requirements and prohibitions on American businesses, but one of the most overlooked obligations for employers is the responsibility to conspicuously post various government labor law notices in the workplace. The purpose of these labor law posters is to inform employees of their rights under applicable laws and provide information on how to report discrimination, wage and hour violations and other rights infringements to the government.

While many employers do not readily embrace the idea of conspicuously posting information that tells their employees how to bring legal action against them, the obligation to display these notices is explicit in various labor laws and government regulations. The federal Fair Labor Standards Act (FLSA), for example, includes a provision requiring all covered employers to display the federal minimum wage poster in an area frequented by employees. OSHA (Occupational Safety and Health Administration) regulations specifically require employers to post a federal safety and health poster or a state equivalent. Failure to comply with government labor law posting requirements could lead to citations and fines during an inspection. Fines vary by poster and by enforcing agency, ranging from as low as $110 up to a potential maximum of $10,000. In total, businesses that don’t post these required notices or post outdated information could face combined fines up to $17,000 per location.

Posting the required information in a back room that employees never enter is not enough to ensure compliance. Government regulations specifically require that the information be displayed in an area frequented by employees during the normal course of the workday. For many companies, that means posting the mandatory notices next to employee time clocks or in lunch areas.

Additionally, some posters must also be displayed in lobbies or applicant areas, as they describe laws that protect job applicants from unlawful discrimination or harassment. One example is the federal “Equal Employment Opportunity Is the Law” Notice, published by the EEOC (Equal Employment Opportunity Commission).

If your employer does not post posters at your workplace relating to your rights under EEOC laws, OSHA and the Fair Labor Standards Act, then you need to either let them know or report the violation to the EEOC or U.S. Department of Labor. If they continue to fail to comply, enlist the assistance of an employment lawyer.


For those of you who are under the age of eighteen or or have children under eighteen, you all should be aware of the changes in child labor regulations going into effect next week. The Department of Labor states that these are the most far reaching changes in child labor laws in thirty years.

The Fair Labor Standards Act (FLSA) sets wage, hours worked, and safety requirements for minors (individuals under age 18) working in jobs covered by the statute. The rules vary depending upon the particular age of the minor and the particular job involved. As a general rule, the FLSA sets 14 years of age as the minimum age for employment, and limits the number of hours worked by minors under the age of 16.

Also, the FLSA generally prohibits the employment of a minor in work declared hazardous by the Secretary of Labor (for example, work involving excavation, driving, and the operation of many types of power-driven equipment). The FLSA contains a number of requirements that apply only to particular types of jobs (for example, agricultural work or the operation of motor vehicles) and many exceptions to the general rules (for example, work by a minor for his or her parents). Each state also has its own laws relating to employment, including the employment of minors. If state law and the FLSA overlap, the law which is more protective of the minor will apply.

Under the Fair Labor Standards Act (FLSA), youths 14 and 15 years old may work outside school hours in various non-manufacturing, non-mining, non-hazardous jobs under certain conditions.
Permissible work hours for 14- and 15-year-olds are:
3 hours on a school day;
18 hours in a school week;
8 hours on a non-school day;
40 hours in a non-school week; and
between 7 a.m. and 7 p.m., except from June 1 through Labor Day, when nighttime work hours are extended to 9 p.m.

So what has been changed in the new Rule?

Well the rule now strengthens child labor laws to protect against workplace hazards. Although these restrictions are probably not normally coming into application, some examples of new prohibitions impacting the employment of youth under the age of 18 years include:

Working at poultry slaughtering and packaging plants;
Riding on a forklift as a passenger;
Working in forest fire fighting, forestry services, and timber tract management;
Operating certain power-driven hoists and work assist vehicles;
Operating balers and compacters designed or used for non-paper products; and
Operating power-driven chain saws, wood chippers, reciprocating saws, and abrasive cutting discs.

In addition, until recently children aged 14 and 15 were required to only work in retail, food service and gasoline industries. The rule now expands youth workplace opportunities that have been judged to be safe for young workers. Examples include:

By removing a 40-year-old provision that generally limits the employment of 14- and 15-year-olds to jobs in retail, food service, and gasoline service establishments, the rule opens up safe and positive employment opportunities in industries such as advertising, banking, and information technology. The Final Rule allows 14- and 15-year-olds to perform work of an intellectual or artistic nature in establishments that were previously prohibited. Such work includes computer programming, drawing, and teaching. The Final Rule also incorporates into the regulations two long standing Departmental enforcement positions that permit 16- and 17-year-olds to operate, under specified conditions, power-driven pizza-dough rollers and portable, countertop food mixers.

If you believe you or a child you know is being worked in violation of these rules, you should contact the U.S. Department of Labor or speak to a qualified employment law attorney.


I have blogged on many occasions about the FLSA or Fair Labor Standards Act which provides the federal laws and regulations for when employees must be paid regular and overtime and whether they should be paid on an hourly or salary basis.

One of the issues that regularly comes up is whether travel time for my employer is time for which I should be getting paid. If you are a non exempt employee (and remember just because your employer says you are does not necessarily make it so (see my prior bloggings)) and getting paid hourly, you are entitled to be paid for all hours that are part of your “hours of work” but not merely commuting.

So what is considered commuting under the FLSA:

As amended by the Portal-to-Portal Act, the FLSA excludes ordinary commuting time, or “traveling to and from the actual place of performance of the principal activity” of employment, from compensation. In contrast, and like on-call time, work completed during a commute that is integral and indispensable to a principal activity of employment is compensable. Whether an employee’s time is considered compensable work depends on whether it is spent predominantly for the benefit of the employer (“predominant benefit test”).

For FLSA-covered employees, normal commuting time from home to work and from work to home is not hours of work. Similarly, for FLSA-exempt employees, normal commuting time from home to work and from work to home is not hours of work. However, commuting time may be hours of work to the extent that the employee is officially ordered or approved to perform substantial work while commuting.

Normal “home-to-work/work-to-home” commuting includes travel between an employee’s home and a temporary duty location within the limits of the employee’s official duty station. For an employee assigned to a temporary duty station overnight, normal “home-to-work/work-to-home” commuting also includes travel between the employee’s temporary place of lodging and a work site within the limits of the temporary duty station.

Imposing even minimal requirements on employees—such as filling up the company car at a particular gas station or stopping at the post office on the drive home from work—can turn normal commuting time into compensable time under the FLSA. That’s true even if the company-mandated “pit stop” doesn’t lengthen employees’ commute.

For instance in one case field engineers for a Florida county needed to drive work trucks to job sites. So, they’d first drive their own cars to the county parking garage and pick up the trucks. The county didn’t pay engineers for their time driving the county truck to the first work site of the day, reasoning that it was unpaid “commuting time.” The engineers disagreed and sued under the FLSA for back wages.

The 11th Circuit sided with the engineers, concluding that making them stop at the garage at the beginning and end of the day was “an inconvenient detour for the employees who, at the end of the workday, could not drive directly home.” That inconvenience made it paid time rather than commuting time. (Burton v. Hillsborough County, No. 10247, 11th Cir., 2006).

So don’t let your employer make you Grumpy by making you work hours that you are not getting paid for and don’t be Bashful about reporting your employer’s violations of the FLSA to the U.S. Department of Labor or an employment law attorney.


Yes thats right gentle readers….Bank of America can now not only be blamed for taking bailout money and not giving any benefit to consumers from it or lending their part to the mortgage crisis, now it appears, at least based upon the allegations of a pending lawsuit, that they also don’t pay their workers in accordance with the Fair Labor Standards Act.  Every time I read this type of stuff, it makes my blood boil: they mess up the economy, get paid by us to fix their own mistakes, all the while cheating consumers and employees.

The lawsuit filed Friday in federal court in Kansas City, Kansas, consolidates 12 lawsuits filed on behalf of employees in California, Florida, Kansas, Texas and Washington.   It seeks nationwide class-action status on behalf of employees at retail branches and call centers over the last three years.

According to the 44-page complaint, the largest U.S. bank by assets requires employees to work in excess of eight hours per day or 40 hours per week, yet fails to pay them both for overtime and for all straight time worked.

The complaint also accuses the bank of requiring employees to work during unpaid breaks, failing to provide meal and rest breaks, and failing to timely pay terminated employees for earned wages and accrued vacation time.

Yes thats right all of these things that I have blogged about that an employer SHOULD NOT BE DOING, apparently Bank of America is guilty of doing.  Of course, just because they were sued does not mean they did anything wrong, I guess we will see how that lawsuit progresses.

So just a reminder, if your employer is making you work in excess of forty hours a week, without overtime pay, or making you work during lunches or not paying you for accrued vacation upon termination, speak to the U.S. Department of Labor or an employment law attorney.  As employees, don’t let your employers take advantage of you.


So another restaurant chain is found to be in violation of the Fair Labor Standards Act.

Dallas-based restaurant chain Texas De Brazil Corp. has agreed to pay $177,502 in overtime and back wages to 715 former and current wait staff, including $14,574 to 42 employees at its location in Downtown Memphis. In addition to Memphis, Texas De Brazil has agreed to pay these back wages to current and former wait staff at properties in the Dallas-Forth Worth area; Miami and Orlando, Fla.; Richmond-Fairfax, Va.; Denver; and Schaumburg, Ill.

The agreement follows an investigation by the U.S. Department of Labor’s Wage and Hour Division which found that workers were not properly paid overtime as required by federal law. Under the Fair Labor Standards Act, restaurants must pay wait staff at least $2.13 per hour, but if that pay and combined tips fall below the federal minimum wage of $7.25 an hour, the employer must make up the difference and bring an employee’s pay up to the minimum wage. FLSA also requires that employers pay workers time and a half their regular rate of pay for any hours worked beyond 40 hours per week.

So as you know this has been a previous blog topic of mine, Hard Rock Cafe and many other restaurant chains have been failing to comply with Federal laws in paying their servers. Make sure you are not one of them. If you are a restaurant server and feel that you are getting underpaid or that you are wrongfully being asked to give your tips to other employees, speak with an employment lawyer who handles FLSA cases.


Many employees, who are hourly employees, question whether or not their employer must give them lunch breaks or rest breaks during the course of the day. The general answer, under Federal law, is no. However some states have their own rest or lunch break statutes for employees, which as of the posting of this blog, include: California, Colorado, Delaware, Illinois, Kentucky, Maine, Massachusetts, Minnesota, Nebraska, Nevada, New Hampshire, New York, New Jersey, North Dakota, Puerto Rico, Ohio, Oregon, Rhode Island, Tennessee, Vermont, Washington, West Virginia, Wisconsin. Each of these laws vary as to what type of break must be provided and to whom they must be provided so take a look at the relevant laws for your state.

Those of you who don’t have an applicable state law, do not fret. Under the Federal Fair Labor Standards Act (FLSA), If your employer does have a policy of giving rest breaks of about 20 minutes or less, must pay employees for their time while on such work breaks.

In other words, the FLSA does not require employers to give rest breaks of any length. But, if employers give short rest breaks anyway, under the FLSA the work breaks are counted as time for which employers must pay employees. If authorized rest breaks extend work hours into overtime, under the FLSA employers must pay the overtime to eligible employees.


Under the FLSA, if employers do give meal breaks voluntarily, they do not have to pay employees while they’re on such work breaks. However, the breaks must be bona fide meal breaks for employers to be relieved of break pay.

For example, an employer who voluntarily offers a daily meal break by policy, but who does not pay employees while they’re on their meal break, must allow employees to take the whole break without working. Otherwise, it is not a bona fide meal break under the FLSA. Instead, it counts as work time, for which the employer must pay employees.

In other words, employers can’t simply label work breaks as meal, dinner or lunch breaks to evade paying employees while they’re on such breaks. Employers must allow employees to take meal breaks free of work duties.

One interesting issue that has arisen lately is with regard to “smart time clocks” which automatically deduct from an employees time card a thirty minute lunch break, whether you take it or not and whether you work through lunch or not. If your employer is automatically taking out your lunch break and you are either not taking the lunch or working through the lunch, then your employer needs to pay you for this time and include it in overtime calculations.

If your employer is violating any of these rules, go seek the assistance of an employment law attorney, or the U.S. Department of Labor.


On many occasions, employees come to me who are working dozens of hours for their employers, but are not getting paid overtime.  I ask them why and the response is , I’m salaried or I’m exempt.  However, you should be aware that just because your employer calls you salaried or exempt does not necessarily make it so as a matter of federal law.  I mean, if your employer calls an apple an orange, it does not make it so, right?

In many instances, employers will call an employee exempt and pay them a salary merely to avoid having to pay their employees overtime.  Getting your employee to work for as many hours as possible for no additional compensation makes good business sense, right?  But its not fair to employees.

So the question for you to determine and ask the U.S. Department of Labor or an employment law attorney is whether I am really an exempt salaried employe or not.  This is not a simple question and the body of Federal law that governs this area,  the Fair Labor Standards Act or FLSA, is complex.

On of the areas that an employer is entitled to pay an employee a salary and call them exempt is if they are in a management or executive type of position.  There are a number of guidelines issued under the Fair Labor Standards Act which determine whether or not you are really a manager who should not get overtime.  I have had many clients where they were called “assistant manager” by their employer to avoid being paid overtime, but according to law should have been paid hourly with overtime.

With few exceptions, to be exempt an employee must (a) be paid at least $23,600 per year ($455 per week), and (b) be paid on a salary basis, and also (c) perform exempt job duties. These requirements are outlined in the FLSA Regulations (promulgated by the U.S. Department of Labor). Most employees must meet all three “tests” to be exempt.

An employee who meets the salary level tests and also the salary basis tests is exempt only if s/he also performs exempt job duties. These FLSA exemptions are limited to employees who perform relatively high-level work. Whether the duties of a particular job qualify as exempt depends on what they are. Job titles or position descriptions are of limited usefulness in this determination. (A secretary is still a secretary even if s/he is called an “administrative assistant,” and the chief executive officer is still the CEO even if s/he is called a janitor.) It is the actual job tasks that must be evaluated, along with how the particular job tasks “fit” into the employer’s overall operations.

There are three typical categories of exempt job duties, today I am just going to discuss executive or management level job duties.

Job duties are exempt executive job duties if the employee

  1. regularly supervises two or more other employees, and also
  2. has management as the primary duty of the position, and also,
  3. has some genuine input into the job status of other employees (such as hiring, firing, promotions, or assignment of job tasks)

“Mere supervision” is not sufficient. In addition, the supervisory employee must have “management” as the “primary duty” of the job. The FLSA Regulations contain a list of typical management duties. These include (in addition to supervision):

  • interviewing, selecting, and training employees;
  • setting rates of pay and hours of work;
  • maintaining production or sales records (beyond the merely clerical);
  • appraising productivity; handling employee grievances or complaints, or disciplining employees;
  • determining work techniques;
  • planning the work;
  • apportioning work among employees;
  • determining the types of equipment to be used in performing work, or materials needed;
  • planning budgets for work;
  • monitoring work for legal or regulatory compliance;
  • providing for safety and security of the workplace.

Determining whether an employee has management as the primary duty of the position requires a case-by-case evaluation.   This is why if you have any doubts, you should consult with the U.S. Department of Labor or with an employment law attorney.

Will try to cover over the next couple of days some of the other FLSA exemptions.  A listing of many other exemptions contained in the FLSA are on the U.S. Department of Labor web site at

Don’t let your employer take advantage of you…..get the overtime you deserve.