Understanding the Fair Labor Standards Act (FLSA)

Understanding the Fair Labor Standards Act (FLSA)

First drafted in 1938, the Fair Labor Standards Act (FLSA) is considered a vital set of labor laws in the United States. It protects workers from exploitation and unfair labor practices, sets the federal minimum wage and overtime pay for most workers, and prohibits oppressive child labor. The FLSA ensures everyone is adequately compensated for their hard work and that no employee, regardless of their nationality, immigration status, or workplace, is left without their rightfully earned wages.

The FLSA has several aspects to it, the first of which is that not all employees are subject to minimum wage and overtime regulations. Some strictly defined employees are exempt from minimum wage and overtime pay under the FLSA. The employer and HR department in a company are tasked to determine precisely which employees are exempt and which are nonexempt. This classifying process is a crucial step to successfully following the FLSA guidelines.

To better understand your rights as an employee and to know whether your employer is violating the FLSA or not, you need to learn more about these employment laws. In this article, we’re going to talk about exempt and nonexempt employees, the most common violations of the FLSA, and what you can do if you discover that your employer is not complying with the wage law.

The first step in analyzing your situation is to find out whether you are exempt or nonexempt from overtime pay or minimum wage.

Exempt Employees

Employees with exempt status are typically “white-collar employees.” However, there are exceptions to that (such as agricultural workers on small farms, motion picture theater employees, railroad employees, taxicab drivers, and more). An exempt employee is one who meets the requirements specified by the FLSA regarding their salary level and the job duties they perform.

The five primary classifications of employees that fall under the FLSA exemption are executive, administrative, professional, computer, and outside sales employees. Each of these categories has a list of tests that an employee must ‘pass’ to qualify as exempt from overtime pay.

Executive Exemptions

An employee must meet all of the following requirements to qualify for the executive exemption:

  • Earning no less than $684 per week on a salary basis (as defined by the FLSA).
  • Primary duties: managing an enterprise or managing a department or a subdivision of an enterprise.
  • Overseeing or directing the work of at least two full-time employees or their equivalents.
  • Having the authority to hire or fire employees. Alternatively, the employee’s opinions, suggestions, or recommendations regarding the promotion, hiring, or letting go of other employees are valued and carry a certain weight in the company.

Administrative Exemptions

An administratively exempt employee meets all of the following:

  • Earning no less than $684 per week on a salary or fee basis (as defined by the FLSA).
  • Primary duties: office and non-manual work in management or general business operations of the employer or any customer.
  • Exercising discretion and judgment when performing primary duties, even in significant matters.

Professional Exemptions

The professional exemption category contains two subcategories: learned professional and creative professional exemptions. Both have their own sets of requirements that describe exactly which professionals are not entitled to overtime pay.

For learned professionals:

  • Earning no less than $684 per week on a salary or fee basis (as defined by the FLSA).
  • Primary duties: performing work that requires advanced knowledge, such as intellectual work and work for which the employee exercises discretion and judgment.
  • The advanced knowledge mentioned above has to be in the field of science or learning.
  • The advanced knowledge must be acquired through specialized education that lasts a longer period of time.

For creative professionals:

  • Earning no less than $684 per week on a salary or fee basis (as defined by the FLSA).
  • Primary duties: performing work that requires imagination, invention, originality, or talent in a field that is widely recognized as artistic or creative.

Computer Employee Exemptions

FLSA overtime rules state that computer employees who meet these requirements are not entitled to overtime pay:

  • Earning no less than $684 per week on a salary or fee basis (as defined by the FLSA) or earning no less than $27.63 per hour if the employee is compensated on an hourly basis.
  • The employee’s position is classified as a computer systems analyst, computer programmer, software engineer, or similar, with the following primary duties:
    • Applying procedures for system analysis – consulting with users on developing hardware, software, or system functional specifications.
    • Designing, developing, analyzing, creating, documenting, modifying, or testing computer programs or systems and their prototypes. These processes can be based on or directly related to system design specifications or the user.
    • Designing, creating, documenting, testing, or modifying software related to machine operating systems.
    • Any combination of the described duties that require the same level of skills.

Outside Sales Exemptions

Unlike other FLSA exemptions, the outside sales exemption doesn’t have a salary basis test. Instead, there are only two tests for employees to be exempt from overtime pay:

  • Primary duties: making sales (as defined by the FLSA) or obtaining orders or contracts for services or the use of facilities that a client or customer is paying for.
  • Customarily and regularly performing their duties away from the employer’s place of business.

Highly Compensated Employees

An additional category of employees who fall into overtime exemptions are highly compensated employees. This category includes employees who meet all the following criteria:

  • Earning a total of $107,432 or more per year, including the salary threshold of $684 per week on a salary or fee basis.
  • Primary duties: office or non-manual work.
  • Performing at least one of the exempt duties mentioned in the previous categories or having the responsibilities of an exempt executive, administrative, or professional employee.

Nonexempt Employees

FLSA exemption does not apply to a wide range of “blue-collar” workers, including but not limited to: plumbers, mechanics, electricians, craftsmen, carpenters, operating engineers, ironworkers, construction workers, and any other profession that requires the use of hands and physical strength and energy.

Additionally, emergency and law enforcement personnel, such as firefighters, rescue workers, emergency medical staff, park rangers, people who work with hazardous materials, and similar, are considered nonexempt.

If you want to check whether your employer is abiding by the wages and hours law, you need to establish whether your particular job duties put you in the exempt or nonexempt category. Employers commit a large number of FLSA violations all across the country, either accidentally or willfully. Familiarize yourself with the FLSA rules and regulations to ensure that your hard work is always adequately paid.

Common Violations of the FLSA

Given how all-encompassing the FLSA is, it’s no surprise that there are many ways to violate this overtime and minimum wage law. If you learn that you are nonexempt in the eyes of the FLSA, meaning that you meet all the requirements for overtime eligibility, you should take a look at the frequent violations of these regulations in case any of them apply to you or your workplace.

  • Misclassifying Employees

We’ve already established that it is the duty of the employer or their HR department to determine whether an employee is exempt from overtime pay. If they happen to classify a nonexempt employee as exempt and fail to pay the employee with overtime wages – that is an incredibly common FLSA violation.

The exempt and nonexempt classification is not based on the job title but rather on the job duties. It doesn’t matter whether you have the words “manager” or “supervisor” in your job title. If you don’t meet the FLSA job duty test (and salary level test) for exemption, you are automatically nonexempt. Your employer should be paying overtime.

  • Salaried Employees vs. Hourly Wages

Some employers believe that salary employees (those who receive a fixed weekly or monthly salary) are exempt from overtime wages. On the contrary, the FLSA overtime law applies to everyone, regardless of whether they’re compensated on a salary or hourly basis.

Even if you have a fixed salary, your employer should pay you for every hour that you work over 40 hours in a single workweek. The rate of pay for these overtime hours should be at least 1.5 times higher than the regular rate of pay.

  • Working “Off the Clock”

If you’re working outside of regular work hours, that counts as work. If you arrive at your office to start work before your shift, it counts as work. If you stay behind to wrap some things up, it counts as work. If you’re attending mandatory meetings or training (that are work-related and will benefit your employer) outside of regular work hours, they still count as additional work.

Many workplaces have strict “no work off the clock” policies to prevent their employees from piling up extra work hours. However, it doesn’t matter if your employer didn’t know about this bonus work time or not – if you’ve put in the hours, you are entitled to receive overtime pay.

  • Meal Breaks

FLSA regulations state that, if you’re an hourly employee, you have the right to a break that lasts less than 20 minutes. If your break is longer than that – 30 or 60 minutes – your employer doesn’t have to compensate you. However, you must not, by any means, perform your job duties during that extended break. If you’re enjoying your salad at your desk while answering work emails, that doesn’t count as a break. It counts as work time and should be paid for as such.

  • On-Call Work

Whether being on call without compensation is a violation of the FLSA depends on several factors. The general rule is that, if the employee is unable to use the on-call time for their own purposes, such as waiting to be called into work on the employer’s premises or similar, this waiting time is considered work.

  • Not Paying for Unauthorized Overtime

If a place of business has a ‘no unapproved overtime’ policy, even if an employee does end up working overtime (whether approved or not), they are entitled to overtime pay. The employer cannot use the defense of unauthorized overtime to withhold overtime wages. Breaking the workplace policy might lead to other consequences, but the employee’s time spent working additional hours should be paid for.

  • Waiving Overtime Pay Agreements

The FLSA is loud and clear in declaring that no agreement between the employer and the employee gives the employee the option to waive their right to overtime pay. If such an agreement exists and is signed by the employee, it is invalid and against the FLSA compliance, and the employer is still obligated to reimburse them for their overtime work.

  • Combining Workweeks

Employers might reach for an averaging tactic in an effort to avoid their overtime wage obligations. The federal labor law (FLSA) states that each hour worked over 40 hours in a single workweek has to be paid for.

If an employee works 30 hours in one workweek, but 50 hours the next week, their employer might be tempted to average out those numbers: 30 + 50 = 80 hours divided by two weeks = 40 hours per week. If that were the case, the employer wouldn’t have to compensate the employee for the additional hours they put in in the second week.

However, no averaging is allowed under the FLSA. The employer must pay for those ten overtime hours in the second week or risk a wage and hour lawsuit.

What to do if your employer violates the FLSA?

Lastly, if you believe that your employer violated the FLSA in any of the ways described above (or any other way we haven’t covered here), you shouldn’t hesitate to file a complaint against them.

The Department of Labor has a division called the Wage and Hour Division that handles FLSA violations. Once they receive a complaint, they launch an investigation that includes a WHD representative visiting the employer, interviewing other employees, gathering information on the employer’s pay practices, looking at work logs, and similar.

Two types of people can file an FLSA complaint:

  • The employee who has been directly wronged by the FLSA violation.
  • A third party who witnessed a violation against a group of employees. This third party can be a low-level worker who belongs in that group of employees, their supervisor, or another executive in the company.

It is important to remember that the labor laws protect employees from being fired or otherwise discriminated against if they file an FLSA report against their employer (and if they participated in the trial around such a report). Undocumented immigrants also have the right to minimum wage rates and overtime compensation. Their immigrant status cannot be used in the employer’s defense.

How to File an FLSA Complaint

  • First-Hand Experience

If you believe that you are owed unpaid wages, you are entitled to filing an FLSA complaint to the Department of Labor’s WHD. They provide a useful list of information you will need to collect to help them in their investigation.

  • Your name
  • Contact information (your address and phone number)
  • Name, location, and phone number of your company
  • Name of the manager or owner of the company (who the WHD should talk to)
  • Your job duties
  • How and when you were paid (by cash or check, weekly, monthly, etc.)

Anything else you may think of or provide will surely help. It can be anything from time cards or the app where you keep track of your work hours, pay stubs, details about how your employer records hours, etc. Once the investigation takes off, you may be asked to provide additional information during the process.

  • Third-Party Complaint

If you are filing a complaint on behalf of someone else, the list of information is more detailed. You may not know all of what is listed here, but try to gather as much as you can regarding employment information, payroll and hours worked, and your employer’s information. We don’t exaggerate when we say that every little bit will help in the long run.

Additional Protections

The FLSA is a federal law in effect in the entirety of the US. However, if your employer failed to pay the required wages for regular or overtime work, you may have bonus protections stemming from your state or local laws.

Aside from filing a complaint with the WHD, which will penalize your employer and facilitate the recovery of back wages, you also have the right to file a private lawsuit against the employer. There is more than one way to ensure that you get your hard-earned money and that your employer doesn’t harm any other employee.

When all is said and done, after the details of FLSA exemptions, the common violations of the FLSA, and what you can do if your employer violates the FLSA, the important takeaway is this: don’t be afraid to stand up for what rightfully belongs to you. If you did the work, you should get compensated for it; there’s no question about it.

If you need help in further untangling the FLSA and your personal circumstances regarding your work and wages, please reach out to us at Cilenti & Cooper, PLLC. We have years of experience as a law firm fighting against unpaid wages and workplace discrimination in the New York Metropolitan area. We offer free consultations to everyone who could use our help, so contact us through our website or give us a call at (718) 841 – 7474.

We look forward to hearing from you.



Let us fight to recover the wages you have earned.

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