Special Issues
Experienced FLSA attorneys know the law
Fair Labor Standards Act (FLSA) cases are all unique. However, certain issues arise more often than others. Attorneys at Billips & Benjamin, based in Atlanta, Georgia, handle these and all FLSA matters skillfully with your best interests in mind.
Off-the-clock work
Off-the-clock work is performed by the employee, but it is not recorded by the employer as time worked. The most common example of off-the-clock work is time spent by employees at home during weekend and other non-business hours.
However, it is common for some employers to order their workers to punch out and go back to work. The FLSA mandates that off-the-clock work by non-exempt workers must be recorded by the employer. If these off-the-clock hours include overtime, the employer must pay overtime wages for this time.
Examples of the off-the-clock work violations:
- Your employer asks you to deliver some documents or merchandise to a customer on your way home from work.
- You do work at home that you did not finish at work.
Waiver of rights
Some employers simply tell workers that they do not pay overtime and only pay straight salaries. This is a violation of the FLSA. Workers are not permitted under the law to waive the right to overtime or minimum wages, as this would make the law meaningless.
This is true even where the employee is urged to sign an agreement forfeiting overtime and agreeing to work for a straight salary.
Unauthorized overtime
Another common ploy is for employers to claim overtime was not pre-approved and is therefore unauthorized. This argument is not valid. The employer can always tell the employee to stop working and leave and therefore prevent overtime from being worked. However, if the employer permits the employee to work the overtime, it cannot complain that the work was unauthorized. The law states that as long as the employer knows the overtime work was performed, it must pay overtime wages.
The Tip Credit allowance
A tipped employee is one who customarily receives more than $30 per month in tips. An employer of a tipped employee is only required to pay $2.13 per hour in direct wages if that amount, combined with the tips received, equals the federal minimum wage. If the employee's combined tips and wages do not equal the federal minimum hourly wage, the employer must make up the difference. Many states require higher than the federal minimum in direct wages for tipped employees.
To use the Tip Credit allowance, the employer must:
- Inform each tipped employee about the Tip Credit allowance before applying it.
- Show that the employee receives at least minimum wage when direct wages and tips actually earned are combined. This means keeping accurate records of tips and wages.
- Allow the tipped employee to keep all tips (unless the employee participates in a valid tip-pooling arrangement with other tipped employees). Under no circumstances is the employer permitted to keep any part of the tips.
- Make up the difference if the combined amount of tips and actual wages is less than minimum wage. Many employers do not make up the difference, and are therefore unable to claim the Tip Credit allowance.
- Have an employee engage in non-tip-producing work. For example, wait staff may serve customer tables during their shift and then have kitchen cleaning duties after the restaurant closes. As no opportunity exists to earn tips while cleaning the kitchen, the Tip Credit allowance cannot be taken for the hours spent cleaning the kitchen and the minimum wage must be paid for non-tip-producing work.
- Pay a minimum wage ($2.13 per hour) in addition to tip income, no matter how much in tips may be earned. This is a common violation of the FLSA.
Meal breaks
The FLSA does not require that an employer provide employees with lunch or coffee breaks. However, when employers do offer short breaks (usually lasting 5 to 20 minutes), the FLSA requires that this time be considered work time—pay is required and time included when determining if overtime was worked.
Genuine meal periods (typically lasting at least 30 minutes), are not work time and are not required to be paid, as long as the employee is truly not working. A lunch break where the employee must still answer the telephone or perform other duties, even if in a limited manner, are considered work hours for which pay is required and which will be included in determining if overtime was worked.
Examples of meal break violations:
- The lunch break lasts less than one half hour.
- Your employer has you answer the telephone during your unpaid lunch break.
- You are asked to do work during your lunch period, such as working while eating a sandwich at your desk.
Compensatory time
Compensatory time, also called comp time, is time off provided by an employer to compensate employees for overtime worked, rather than paying the employee overtime wages. The practice is illegal for private employers.
But under limited circumstances, a public employer may offer comp time. However, comp time must equal 1.5 hours off for every one hour of overtime worked. Not awarding comp time in this way is a common violation of the FLSA.
Before a public entity such as a city or county can award an employee comp time off in lieu of paying overtime wages, several requirements must be met:
Prior to awarding comp time to a public employee, there must be an agreement or understanding between the employer and particular employee that comp time will be awarded instead of overtime wages paid. A collective bargaining agreement providing for comp time instead of overtime pay satisfies this requirement.
No more than 480 hours of comp time may be accrued. After that maximum is reached, additional overtime hours must be paid for.
The employee must be permitted to use the comp time earned within a reasonable time of the request unless doing so would unduly disrupt the operations of the public employer. However, not wanting to pay overtime to another employee to cover for the employee who seeks to use his comp time does not constitute an undue disruption.
Billips & Benjamin can advise you on these special issues and all matters presented by the FLSA.
