Fair Labor Standards Act of 1938 Flashcards
What 8 main catgories does the FLSA cover?
1) Payment of Minimum Wage ($7.25 federal and $2.13 for tipped employees)
2) In minimum wage provision - Amendment EQUAL PAY ACT - prohibiting discrimination on the basis of sex
3) FLSA also prohibits employment discrimination against employees who exercise their rights under the Act or who participate in proceedings under the Act
4) Premium Pay (Overtime pay) (1 1/2 times the employer’s regular rate for working hours in excess of 40 hours in any work week)
5) Restricts employment of “homeworkers” and “children”
6) Regulate certain industries and occupations including Agriculture, Reailers of Goods & Services, Motor Carriers, Seamen, and Fishing and Aquatic occupations
7) Record Keeping
8) Youth Employment Standards
THRESHOLD: What two ways can an employee be covered by the FLSA?
1) Enterprise Coverage
Employees who work for certain businesses or organizations (or “enterprises”) are covered by the FLSA. These enterprises
i) have at least 2 employees
ii) those that have an annual dollar volume of sales or business done of at least $500,0000
iii) hospitals, businesses providing medical or nursing care for residents, schools and preschools, and government agencies
2) Individual Coverage
Employees are protected if their work
i) regularly involves them in interstate commerce
Does FLSA cover Federal, State and local government employers?
Yes.
BUT a limited 11th Amendment immunity exists for Federal and State Employers. NO IMMUNITY for local government employers.
Does FLSA cover Unions or Union Representatives?
No, they are not considered an “Employer” under the FLSA definitions unless they are acting as an employer.
(Similar to Equal Pay Act and ADEA also follows Unions not to be employers)
How does the FLSA define employee?
Under the FLSA,
An “employee” is any individual whom an employer suffers, permits, or otherwise employs to work
How does the FLSA determine whether an individual is an employee or independent contractor?
****NEED TO FINISH ANSWER
Most modern statements of the common law test borrow many factors of the “economic realities” test. See Reich v. Circle C Investments, Inc., 998 F.2d 324 (5th Cir. 1993)
Can more than one party be an employer under the FLSA?
Yes, under “Joint Employment.”
***Under certain circumstances, even an individual or owner of an employer-business may be one of the “employers” liable for the business’s wage and hour violations.
Fact Scenario: Massage students performed massages for members of public, for which school charged and collected discounted rates.
Are the massage students employees under the FLSA?
STATE THE IRAC
STATE THE IRAC (Issue, Rule, Application, Conclusion)
Issue: Are students (and interns) covered by FLSA when money is received from the school?
Rule: Apply the Primary Beneficiary Test- to determine which party is the “primary beneficiary” of the relationship - Courts have identified 7 factors: (1) Extent intern and employer understand there is no expectation of compensation (express or implied), (2) Exent to which internship provides training similar to educational environment, including clinical and hands-on training provided by educational institutions, (3) Extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit, (4) Extent to which the internship accomodates the intern’s academic commitments by corrsponding to the academic calendar, (5) The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning, (6) Extent to which the intern’s work compliments, rather than displaces, the work of paid employees while providing significant educational benefits to the intern, (7) Extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.
Application: The work was primarily for the students benefit by obtaining experience with oversight, and fulfilling clinical requirements for professional licensing.
Conclusion: No, not employees. Nesbitt v. FCNH, Inc. (10th Cir. 2018)
What is the FLSA exemption regarding individuals working in fire protection or law enforcement activities.
Exemption Exists: Any employee of a public agency who in any workweek is employed in fire protection activities or any employee of a public agency who in any workweek is employed in law enforcement activities (including security personnel in correctional institutions), if the public agency employs during the workweek less than 5 employees in fire protection or law enforcement activities
What is the statute of limitations for a claim under the FLSA?
Rule: The statute of limitations is 2 years.
Exception: If there is determined to be a willful violation, then it will be extended to 3 years. Wilfull violation is where the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.
(Court may limit the amount of liquidated damages if it finds a good faith defense by employer)
What is the worst that can happen to employer violating FLSA?
(Name all potential issues)
Failure to comply with the FLSA could result in any of the following:
- payment of liquidated damages (double back pay);
- payment of attorney’s fees;
- civil money penalties;
- fines and jail terms for cases of repeated willfull violations; and
- other injunctive and equitable relief.
What should be done about labor agreements that contain provisions that are in noncompliance with the FLSA?
The jurisdiction should seek to renegotiate the labor agreements to come into compliance with the act. Provisions allowing comp time are valid, but employers must still give the leave at time and one-half, regardless of the labor agreement provisions.
How is the FLSA enforced?
DOL’s Wage and Hour Division initiates investigations when complaints are filed or when particular industries are targeted for investigation. The solicitor of labor can bring a lawsuit on an employee’s behalf in appropriate cases where the Wage and Hour Division finds that FLSA violations have occurred. Additionally, the U.S. Department of Justice can criminally prosecute persons who commit willful violations of the act
What is minimum wage and what is the rule on paying tipped employees?
The FLSA requires employers to pay non-exempt employees minimum wage (currently, $7.25 an hour), but treats “tipped employees” — those who customarily and regularly receive at least $30 a month in tips — differently. Because tipped employees receive substantial compensation through tips, the FLSA permits employers to pay them a direct wage of $2.13 an hour and take a “credit” for the tips received by the employee to satisfy the remaining portion ($5.12 an hour) of the minimum wage. If the combined direct wage and total tips received by an employee is less than the minimum wage for all hours worked in a given workweek, the employer must make up the difference. Usually, though, servers receive tips well in excess of the minimum wage and, in fact, often earn far more than traditionally non-tipped workers, such as kitchen staff, particularly at fine-dining establishments.
A new proposed rule by the DOL seeks to implement changes on tip pooling. What is the current rule?
NPR seeks to implement changes on tip pooling, made by the Consolidated Appropriations Act (CAA) of 2018.
That Act prohibits employers, managers, or supervisors from keeping employee tips, including those from a tip pool, regardless of whether the employer takes a tip credit under the FLSA.
The Act, however, would allow employers to mandate a tip pool that includes traditionally tipped (e.g., servers and bartenders) and non-tipped (e.g., cooks and dishwashers) positions if the employer does not pay the tipped employees using a tip credit (that is, the employee is paid the full minimum wage without any credit for tips).