Wage and Hour Laws
Purpose (see below how HRSource™ can help):
To provide an overview of the major Wage and Hour Laws.
Contents- Overview of the Fair Labor Standards Act (FLSA)
- Basic Provisions/Requirements
- Enforcement and Penalties
- Relation to State, Local and Other Federal Laws
- Child Labor Laws
- Penalties
Overview of the Fair Labor Standards Act (FLSA)
The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, record-keeping and child labor standards for full- and part-time workers in the private sector and in federal, state and local governments. The Act applies to enterprises that have employees who are engaged in interstate commerce, producing goods for interstate commerce, or handling, selling or working on goods or materials that have been moved in or produced for interstate commerce.
Certain employees are exempt from both the minimum wage and overtime pay requirements, including:
- Executive, administrative and professional employees (including teachers and academic administrative personnel in elementary and secondary schools, and certain skilled computer professionals and outside sales persons;
- Employees of seasonal amusement or recreational establishments;
- Employees of certain small newspapers and switchboard operators of small telephone companies;
- Seamen employed on foreign vessels;
- Employees engaged in fishing operations;
- Farm workers employed on small farms (i.e., those that used less than 500 "man-days" of farm labor in any calendar quarter of the preceding calendar year);
- Casual baby-sitters and persons employed as companions to the elderly or infirm.
Some employees are exempt from the Act's overtime pay requirements only, including:
- Certain commissioned employees of retail or service establishments;
- Auto, truck, trailer, farm implement, boat or aircraft salesworkers,
- Announcers, news editors and chief engineers of certain non-metropolitan broadcasting stations;
- Domestic service workers who reside in their employer's residence;
- Farmworkers.
Basic Provisions/Requirements
- The Act requires employers of covered employees who are not
otherwise exempt to pay these employees a minimum wage of not
less than $7.25 an hour, as of July 24, 2009. (Individual states have
their own minimum wage requirements.)
- Youths under 20 years of age may be paid a minimum wage of not
less than $4.25 an hour during the first 90 consecutive calendar
days of initial employment with their employer. Employers may
not displace any employee to hire someone at the youth minimum
wage. Many states have their own laws related to youth minimum
pay and work permit requirements.
- Employers may pay employees on a piece-rate basis, as long as
they receive at least the equivalent of the required minimum
hourly wage rate.
- Employers of tipped employees, i.e., employees who customarily
and regularly receive more than $30 a month in tips, may
consider the tips of these employees as part of their wages, but
must pay a direct wage of at least $2.13 per hour if they claim
a tip credit. Certain other conditions must also be met. Some
states do not allow tip credit.
The Act also permits the employment of the following individuals at wage rates below the statutory minimum wage under certificates issued by the Department:
- Student learners;
- Full-time students in retail or service establishments, agriculture, or institutions of higher education;
- Individuals whose earning or productive capacity is impaired by a physical or mental disability, including those related to age or injury for the work to be performed.
While not placing a limit on the total hours which may be worked,
the Act requires that covered employees, unless otherwise exempt,
be paid not less than one and one-half times their regular rates
of pay for all hours worked in excess of 40 in a workweek.
Employers are required to keep records on wages, hours and other items as set out in the Department of Labor's regulations. Most of this information is of the type generally maintained by employers in ordinary business practice.
Performance of certain types of work in an employee's home is prohibited under the Act unless the employer has obtained prior certification from the Department of Labor. Restrictions apply in the manufacture of knitted outerwear, gloves and mittens, buttons and buckles, handkerchiefs, embroideries, and jewelry (where safety and health hazards are not involved). Employers wishing to employ homeworkers in these industries are required to, among other things, provide written assurances to the Department that they will comply with the Act's wage and other requirements. The manufacture of women's apparel (and jewelry under hazardous conditions) is generally prohibited, except under special certificates that allow homework in these industries when the homeworker is unable to adjust to factory work because of age or physical or mental disability, or is caring for an invalid in the home.
It is a violation of the Act to fire or in any other manner discriminate against an employee for filing a complaint or for participating in a legal proceeding under the Act.
The Act also prohibits the shipment of goods in interstate commerce which were produced in violation of the minimum wage, overtime pay, child labor, or special minimum wage provisions.
Enforcement and Penalties
Enforcement of the Act is carried out by Wage and Hour Division compliance officers stationed throughout the country. A variety of remedies are available to the Department to enforce compliance with the Act's requirements.
- When compliance officers encounter violations, they recommend
changes in employment practices in order to bring the employer
into compliance.
- Willful violations may be prosecuted criminally and the
violators fined up to $10,000. A second conviction may result in
imprisonment.
- Employers who willfully and repeatedly violate the minimum
wage or overtime pay requirements are subject to civil money
penalties of up to $1,000 per violation.
- When a civil money penalty is assessed, employers have the
right, within 15 days of receipt of the notice of such penalty,
to file an exception to the determination. When an exception is
filed, it is referred to an administrative law judge for a
hearing and determination as to the appropriateness of the
penalty. If an exception is not filed, the penalty becomes
final.
- The Secretary of Labor may also bring suit for back pay and an equal amount in liquidated damages and obtain injunctions to restrain persons from violating the Act. Employees may also bring suit, where the Department has not done so, for back pay and liquidated damages, as well as attorney's fees and court costs.
Relation to State, Local and Other Federal Laws
State laws also apply to employment subject to this Act. When both this Act and a state law apply, the law setting the higher standards must be observed.
Child Labor Laws
The child labor provisions of the Fair Labor Standards Act (the Act) are designed to protect the educational opportunities of youths and prohibit their employment in jobs and under conditions detrimental to their health and well-being. In non-agriculture, the child labor provisions apply to enterprises that have employees who are engaged in interstate commerce, producing goods for interstate commerce, or handling, selling or working on goods or materials that have been moved in or produced for interstate commerce.
Sixteen is the minimum age for most nonfarm work. However, youths may, at any age:
- Deliver newspapers;
- Perform in radio, television, movies, or theatrical productions;
- Work for their parents in their solely owned nonfarm businesses (except in mining, manufacturing, or in any other occupation declared hazardous by the Secretary of Labor); or
- Gather evergreens and make evergreen wreaths.
The Act's child labor provisions set forth 17 hazardous occupations orders for jobs declared by the Secretary of Labor to be too dangerous for minors under age 18 to perform. The Act prohibits the shipment of goods in interstate commerce which were produced in violation of the child labor provisions. It is also a violation of the Act to fire or in any other manner discriminate against an employee for filing a complaint or for participating in a legal proceeding under the Act.
The permissible jobs and hours of work, by age, in nonfarm work are as follows:
- Youths 18 years or older may perform any job for unlimited hours
- Youths age 16 and 17 may perform any job not declared hazardous by the Secretary of Labor, for unlimited hours;
- Youths age 14 and 15 may work outside school hours in various non-manufacturing, non-mining, nonhazardous jobs under the following conditions: no more than 3 hours on a school day, 18 hours in a school week, 8 hours on a non-school day, or 40 hours in a non-school week. In addition, they may not begin work before 7 a.m. nor work after 7 p.m., except from June 1 through Labor Day, when evening hours are extended until 9 p.m.
Department of Labor regulations require employers to keep records of the date of birth of employees under age 19, their daily starting and quitting times, daily and weekly hours worked, and their occupation. Employers may protect themselves from unintentional violation of the child labor provisions by keeping on file an employment or age certificate for each youth employed to show that the youth is the minimum age for the job. Certificates issued under most state laws are acceptable for this purpose.
Penalties
Employers are subject to a civil money penalty of up to $10,000 for each employee employed in violation of the child labor provisions. When a civil money penalty is assessed, employers have the right, within 15 days of receipt of the notice of such penalty, to file an exception to the determination. When an exception is filed, it is referred to an administrative law judge for a hearing and determination as to the appropriateness of the penalty. Either party may appeal the decision of the administrative law judge to the Secretary of Labor. If an exception is not timely filed, the penalty becomes final.
The Act also provides, in the case of a conviction for a willful violation, for a fine of up to $10,000; or, for a second offense committed after the conviction of such person for a similar offense, for a fine of not more than $10,000 and imprisonment for up to six months, or both. The Secretary of Labor may also bring suit to obtain injunctions to restrain persons from violating the Act.
Relation to State, Local and Other Federal Laws
Many states have child labor laws, including the requirement to obtain a work permit through the minor's school. When both this Act and a state law apply, the law setting the higher standards must be observed.
HRSource™ can track data required of the Wage and Hour laws include:
