Fair Labor Standards Act of 1938

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Fair Labor Standards Act of 1938 (FLSA) (U.S.C. ch. 8), is federal law that applies to employees engaged in and producing goods for interstate commerce, unless the employer can claim an exemption from coverage. The FLSA established a national minimum wage, guaranteed time and a half for overtime in certain jobs, and prohibited most employment of minors in "oppressive child labor," a term defined in the statute.

The law originally contained a large number of special industry exemptions, many of which were designed to protect traditional pay practices in small, rural businesses. The bulk of these exemptions have been repealed. Currently, the most important issues relate to the so-called "white collar" exemptions applicable to professional, administrative and executive employees.

The FLSA is administered by the Wage & Hour Division of the United States Department of Labor, which conducts audits and workplace inspections. The Administrator of the Wage & Hour Division has no unilateral enforcement authority, but may bring a lawsuit in federal court. As a practical matter, this is relatively rare. The FLSA provides for direct federal actions by employees.

The FLSA provides that workers who are underpaid can recover not only the minimum wages and overtime wages due to them, but also an equal amount as liquidated damages. They can also recover reasonable attorney fees. The FLSA also prohibits retaliation against employees who make complaints and requires employers to keep records of the hours worked by all employees, even those who are exempt.

The most contentious issues in recent years relate to technical employees having a significant degree of specialized knowledge without formal academic credentials. Such employees often exercise no direct management or even administrative authority, and so are arguably ineligible for any of the FLSA white collar exemptions. By legislative amendment, some employees of this sort are now exempt from the overtime provisions of the FLSA, but many unsettled issues remain.

Contents

Amendments

The Act was amended in October of 1949 with passage of the Fair Labor Standards Amendment, and again by the Equal Pay Act of 1963 to prohibit discrimination on the basis of sex in the payment of wages.

On August 23, 2004, wideranging changes to the FLSA's overtime regulations went into effect, making substantial modifications to the definition of an "exempt" employee. These changes were sought by business interests and the Bush administration, which claimed that the laws needed "clarification" and that few workers would be affected. The Bush administration called the new regulations the somewhat Orwelain market tested phrase "FairPay." But labor organizations, such as the AFL-CIO, pointed out that the changes would make millions of additional workers ineligible to obtain relief under the FLSA for overtime pay. Attempts in Congress to overturn the new regulations were unsuccessful.

At the beginning of 2007 as the Democrats regained control of Congress for the first time in 12 years, they began an ambition 100-Hour Plan in the House which had as one of its major items was passing the Fair Minimum Wage Act of 2007 which would amend the FLSA in order to increase the Federal minimum wage. This would be the first time in more than a decade that the minimum wage would be increased. The bill quickly passed in the House, but has since become mired in the Senate as the Republicans have slowed passage to a crawl by offering well over a hundred amendments to the bill.

Practical Application

The Fair Labor Standards Act applies to employees engaged in and producing goods for interstate commerce, unless the employer can claim an exemption from coverage. Several exemptions exist that relieve an employer from having to meet the statutory minimum wage, overtime, and record-keeping requirements. The largest exceptions applies to the so-called "white collar" exemptions applicable to professional, administrative and executive employees. Exemptions are narrowly construed; an employer must prove that the employees fit "plainly and unmistakenly" within the exemptions terms.

The FLSA applies to "any individual employed by an employer" but not to independent contractors or volunteers because they are not considered "employees" under the FLSA.

Assuming an employee is not exempt from overtime, there are many instances in which overtime is not paid properly for, including when an employee is working more than 8 hours in a day (time and a half), working more than 12 hours in a day (double time), working more than 40 hours in a week (time and a half), working for seven or more consecutive days out of seven, working 72 hours in a week, or not being paid for travel time between job sites, activities before and after your shift starts, activities to prepare for work that are central to work activities.

If an employee is entitled to overtime, they will receive time and a half or double time depending on the situation based on Section 207.


Resources

See also

Law Review Commentary

"The New FLSA White-Collar Regulations – Analysis of Changes," by Jay P. Lechner, 79 Florida B. J. 20 (Feb. 2005)

External links

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