Common Violations of the FLSA
Common Violations of the Fair Labor Standards Act (FLSA)
The Fair Labor Standards Act (FLSA) sets regulations to ensure fair treatment for workers, including minimum wage, overtime pay, and more. Here are common violations employers should avoid to stay compliant.
Believing Salaried Employees Are Not Entitled To Overtime
Many employers mistakenly believe that only hourly employees are entitled to overtime. However, salaried employees must be evaluated for specific exemptions like the executive, administrative, or professional exemptions. If no exemption applies, they must be paid for all overtime worked over 40 hours in a workweek.
Misclassifying Employees To Avoid Paying Overtime
Job titles such as “manager” or “supervisor” do not determine overtime eligibility; actual job duties and compensation do. Misclassifying employees to fit narrow exemptions can result in unpaid overtime, which is against the FLSA.
Not Paying Employees for Meal Time or Breaks
Hourly employees must be paid for breaks under 20 minutes. Automatically docked meal breaks require that the employee be completely relieved from duty. If the employee works during their meal break, they must be compensated.
Refusing To Pay Overtime If Not Approved In Advance
FLSA mandates that any overtime work performed must be compensated, regardless of pre-approval. Employers cannot deny overtime pay simply because it was not authorized in advance.
Allowing Employees To “Waive” Their Right To Overtime
Employees cannot waive their right to overtime pay. Agreements that limit working time to 8 hours a day or 40 hours a week do not comply with FLSA regulations.
Combining Workweeks
Employers may not average hours over multiple workweeks to avoid paying overtime. Each workweek stands alone, and overtime must be paid for any hours over 40 in a single workweek.
Unpaid Meeting and Training Time
If meetings or training are related to the employee's job and considered mandatory, this time must be compensated. Employers must include these hours in wage calculations.
On-Call Work
Determining whether on-call time is compensable depends on facts. If employees need to remain on or near the premises, limiting their personal time, this is considered work time under the FLSA.
Working “Off-the-Clock”
Any time an employee works before or after their scheduled shift counts as work time if the employer knew or should have known about it. "Pre-work" and "post-work" must be compensated under the FLSA.
Unpaid Final Paychecks
Failure to pay an employee's final paycheck upon termination or resignation is a violation of the FLSA. Ensure all due wages are paid promptly to avoid legal issues.
$40M+
$500M+
The amount of wages that are unlawfully withheld from NY employees each year
$50B+
300,000+
The number of New Yorkers who are underpaid each year
The Federal law that regulates fair pay in the workplace is called the Fair Labor Standards Act (“FLSA”). The FLSA protects employees from employers who violate overtime and minimum wage laws. New York and many other states have additional overtime and minimum wage laws as well. In general, where the federal and state wage laws have different requirements, employers are required to follow the rules more favorable to employees.
Presently the minimum wage is $15.00 per hour in New York City for employers with 11 or more employees, or $13.50 per hour for employers with 10 or fewer employees. As of January 1, 2024, the minimum wage in New York City and Nassau, Suffolk, and Westchester counties is now $16.00 per hour, regardless of the employer’s size. For the remainder of the state (outside NYC, Nassau, Suffolk, and Westchester), the minimum wage is now $15.00 per hour. These rates are significantly above the federal minimum wage of $7.25 per hour. Each state has the authority to set its own minimum wage, which must be equal to or greater than the federal minimum wage.
The minimum wage in New York will continue to adjust annually, with planned increases until reaching a maximum of $17 per hour by January 1, 2026. This ensures that the minimum wage in New York will continue to rise, reflecting the commitment to provide a living wage for all workers in the state.
Generally, you must be paid “time and a half” your regular hourly rate for any time worked in excess of 40 hours in a workweek. In many instances, employers who pay some overtime fail to pay employees for all time worked. Even if you received some overtime pay, you may be entitled to additional money.
This depends on the duties your job requires you to perform. Jobs that meet certain very limited requirements are considered “exempt” from requirements. The exemptions to the law are based on job duties and certain pay requirements, not based on your job title given by your employer. The most commonly applied exemptions to the FLSA are often referred to as the “white collar” exemptions for certain administrators, executives and professionals. You should consult one of our lawyers to discuss if you are properly classified as an “exempt” employee.
The law allows you to recover the overtime and minimum wages you should have been paid within certain timeframes. In most cases, you can also recover double the amount of wages you are owed. If you prevail in your claim, you may also be awarded attorneys’ fees and costs.
No. Any kind of retaliation against an employee for participating in a lawsuit or administrative proceeding under the FLSA is against the law. An employer cannot fire or retaliate against an employee if the employee sues for unpaid wages. An employer who “blackballs” or demotes the employee, reduces the employee’s hours, shifts, or duties, or gives false poor performance evaluations, violates the law.
Employees are not able to waive their right to overtime pay. Regardless of the terms of your employment or any agreements you may have signed, your employer is required to pay you overtime if you are not exempt under the FLSA.
Frequently Asked Questions
