Wage & Hour Law Frequently Asked Questions (FAQ)

The Department of Labor (DOL) is a federal entity that ensures compliance of the FLSA by employers across the country. The DOL has the authority to investigate any complaints of violations of the FLSA; enter into settlements with employers; and file federal complaints against employers for violations of the FLSA. While the DOL has the authority to enter into a settlement with the employer, the settlement only applies to employees who accept the settlement checks from their employer and cash them. Otherwise, the employee can file their own federal FLSA lawsuit and likely, seek and recover a larger amount of damages than what the employer offered to settle with the DOL. Many times, the settlement agreement between the DOL and employer provides that the employees recover less than 100% of their owed wages under the FLSA. It is, after all, a “settlement.” Therefore, it is in an employee’s best interest to speak with an attorney prior to cashing a check from their employer that is a settlement for owed wages under the FLSA.

Almost all hourly employees are entitled to overtime. To calculate an hourly employee’s overtime rate, you start with the employee’s regular hourly rate. The employee’s overtime rate is 1.5 times their regular hourly rate. An employee whose hourly rate is $24 has an overtime rate of $36 ($24 x 1.5 = $36). The employee is entitled to $36 per hour for all hours over 40 hours in a given workweek. For more information about pay requirements for hourly employees, see the law firm’s Hourly Employees page.

The term “off the clock” work pertains to work performed by an employee while the employee is clocked out. For example if a company requires an employee to perform work duties before they clock in or after they clock out, this work is called “off the clock” work. Hourly employees and non-exempt salaried employees must be paid for all hours worked, including, the time in which they were clocked out.

For example, a company has a policy of automatically deducting one hour of time from an employee’s time records for each day worked for the employee’s lunch break. However, the employee is never permitted to take an uninterrupted lunch break and is required to continue to perform job duties. This work is being performed “off the clock” and the employer must pay the employee for this time. Another example is when an employer requires the workers to clock out at 6pm each evening, but requires the workers to continue to perform work duties. This “off the clock” work is compensable under the FLSA. For more information about off the clock work, see the firm’s Hourly Employee page.

The term “wait time” refers to the time an employee is required to wait to perform their job duties. “Wait time” must be paid to the employee. For example, a manufacturer’s equipment fails and the employees are forced to wait an hour for the equipment to be repaired. Or, the employees are required to gather at a specific location and wait for instructions before performing work. These are examples of “wait time” that the employer is required to pay the employee. For more information about wait time, see the firm’s Hourly Employee page.

The term “travel time” refers to the time an employee is forced to travel for work. Some “travel time” must be paid by the employer. For example, if an employer requires an employee to arrive at one location to pick up equipment or attend a company meeting and then travel to the actual worksite, the time spent traveling from the first location to the worksite is time that the employer must pay the employee as compensable travel time. For more information about travel time, see the law firm’s Hourly Employee page.

The FLSA does not require employers to pay employees when employees take “bona fide meal periods.” However, in order to be considered a bona fide meal period under the FLSA, the employee must be “completely relieved from duty for the purposes of eating regular meals.” This means that the employer cannot require the employee to perform any duties, whether active or inactive, while eating. For example, a worker who eats at their desk to continue working is not relieved from duties. Or, a worker who drives a delivery truck, is not relieved of their duties when they go through a drive through and eat their meal while continuing to drive to their next destination. If an employee works through their meal period, the employer must pay them for that time.

With respect to rest breaks, the federal regulations state that rest periods of short duration, running from five minutes to about 20 minutes are not only common but promote efficient of the employee. Breaks of these durations must be paid. However, an employer is not required to pay an employee who takes a break longer than 20 minutes. For more information about meal and rest breaks, see the law firm’s Meal and Rest Breaks page.

Attendance at lectures, meetings, training programs, and similar activities are not counted as work time entitled to pay if the employer can meet four elements:

1. Attendance is outside the employee’s regular working hours;
2. Attendance is voluntary;
3. The course, lecture, or meeting is not directly related to the employee’s job; and
4. The employee does not perform any productive work during such attendance.

However, if an employer requires the employee to attend the lecture, meeting, or training program, then the employer must compensate the employee for such attendance, including if the employer leads the employee to believe that their present working conditions or the continuance of their employment would be adversely affected by nonattendance.

Yes. Unless the employer can prove that the salaried employee falls under one of the FLSA’s overtime exemptions, the employer must pay the employee overtime wages. For more information about salaried employees pay and exemptions under the FLSA, see the law firm’s Salaried Employees page.

The general rule is that employers must pay an exempt salaried employee the full salary for any week in which the employee performs any work, regardless of the number of days or hours worked (with the exception of the first and last weeks of employment if the employee did not work the full workweeks). And, employers are not required to pay exempt salaried employees for any workweek in which they perform no work. If, however, the employee is ready and able to perform their job, deductions cannot be made for time during which work is not available.

Some deductions to a salaried employee’s paycheck are allowed. These permissible deductions include:

1. When a salaried exempt employee is absent from work for one or more full days for personal reasons other than sickness or disability;
2. For absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness;
3. For weeks for unpaid leave under the Family and Medical Leave Act;
4. To offset the amounts that the employee receives as a jury or witness, or for military pay;
5. For penalties in good faith for infractions of safety rules of major significance; or
6. For unpaid disciplinary suspensions of one or more fully days imposed in good faith for workplace conduct rule infractions.

For more information about deductions to pay of salaried employees, see the law firm’s Salaried Employee page.

Under the FLSA, an employee is entitled to unpaid minimum wages, unpaid overtime wages, liquidated damages, attorney’s fees, and litigation costs. For example, a non-exempt salaried employee who is successful in their overtime case who recovers $5,000 in unpaid overtime wages, would also be entitled to $5,000 in liquidated damages, as well as attorney’s fees and litigation costs.

Yes. The statute of limitations is two years. However, the statute of limitations is extended to three years for claims in which the employer willfully violated the FLSA.

Yes. Of course.

No. If FLSA attorneys at Martin & Martin accept your case, it will be subject to a contingency fee agreement that does not require you to pay any attorney’s fees unless they are successful in your case. And, even then, if an employee is successful, the FLSA requires that the employer pay the employee’s attorney’s fees and litigation costs.

It is okay if you do not have copies of your time or pay records. If you file a lawsuit against your employer, your employer will be required to produce them.

More than one person may file an FLSA action together if they are similarly situated. For example, workers with the same job duties and pay plan may file a lawsuit on behalf of themselves and on behalf of any other workers who are similarly situated. These are called class or collective actions. For more information, see the firm’s Class/Collective Action page.

If you receive a document in the mail called an FLSA Consent to Sue form, it means that you have been identified as someone who worked in a particular position at a particular employer whereby other employees have already filed a class or collective action lawsuit. Read the document carefully. You can choose to join that particular lawsuit; file your own lawsuit; or do nothing which means you will not recover any unpaid wages. There can be an advantage to filing your own lawsuit. If the class/collective action is very large, it will take quite a bit of time to maneuver through the Court. However, if you file a lawsuit just on your behalf, it will likely move much quicker and resolve much sooner. For more information about class and collective actions, see the law firm’s Class/Collective Action page.

No. The FLSA has an anti-retaliation provision that prohibits your employer from retaliating against you if you report them to the DOL or file a lawsuit against them. Additionally, your employer is prohibited from retaliating against you for complaining internally to your supervisor, HR, etc. If they retaliate against you, you can amend the lawsuit to add a claim of retaliation. For more information about FLSA retaliation, see the law firm’s FLSA Retaliation Page.

It would be helpful if you have your pay and time records and a copy of any company pay or time policies. However, you do not need to have these records. If you file a lawsuit, your employer will be required to produce all of your pay and time records as well as any company policies and rules.