Written by attorney Bradford Biven Lear

The FLSA: What the FLSA Does And Does Not Regulate

The FLSA requires that all covered, nonexempt employees be paid (1) at least the minimum wage for all hours worked, and (2) one and one-half times their regular rate of pay for all hours worked over 40 in a workweek.

The FLSA Minimum Wage Rate increased to $5.85 per hour effective July 24, 2007, and $6.55 per hour effective July 24, 2008. The minimum wage will increase to $7.25 effective July 24, 2009. The maximum tip credit is set at $2.15 per hour.

The FLSA employs a "suffer or permit" standard - meaning that covered employees must be paid for all hours in which the employee worked even if not specifically requested by the employer. For this reason, it is typically difficult to defend claims as "unauthorized overtime" or "working before or after clocking in."

The FLSA does not require:

  1. vacation, holiday, severance, or sick pay;
  2. meal or rest periods, holidays off, or vacations;
  3. premium pay for weekend or holiday work;
  4. pay raises or fringe benefits;
  5. a discharge notice, reason for discharge, or immediate payment of final wages to terminated employees; and
  6. pay stubs or "W-2"s.

The FLSA does not provide wage payment or collection procedures for an employee's usual or promised wages or for commissions in excess of those required by the FLSA. Also, the FLSA does not limit the number of hours in a day, or days in a week, an employee may be required or scheduled to work, including overtime hours, if the employee is at least 16 years old.

The Portal-to-Portal Act limits the time that is compensable under the FLSA to exclude:

  1. walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and
  2. activities which are preliminary to or postliminary to said principal activity or activities.




· Coffee and snack breaks

· Fire drills

· Grievance adjustment during time employee is required to be on premises

· Meal periods if employees are not relieved of duties, if not free to leave posts or if too short to be useful (less than ½ hour)

· Meal periods of 24-hour on-call employees

· Medical attention on plant premises or if employer directs outside treatment

· Meetings to discuss daily operations problems

· Rest periods of 20 minutes or less

· Retail sales product meetings sponsored by employer

· Show-up time if employees are required to remain on premises before being sent home

· Sleeping time if tour of duty is less than 24 hours

· Stand-by time—remaining at post during lunch period or temporary shut down

· Suggestion systems

· Travel:

  • from job site to job site

  • from work site to outlying job

  • from preliminary instructional meeting to work site

· Waiting:

  • by homeworker to deliver or obtain work

  • by truck driver standing guard while loading

  • for work after reporting at a required time

  • while on duty

· Absence for illness, holiday or vacation

· Meal periods of ½ hour or longer if relieved of all duties and free to leave post (but can be confined to plant premises)

· Medical attention by employee choice of outside doctor

· Shutdown for regular maintenance

· Sleeping time up to eight hours if tour of duty is 24 hours or longer, if agreement to exclude sleep time exists, facilities for sleeping are furnished, at least five hours of sleep are possible during scheduled period, and interruptions to perform duties are counted as hours worked

· Union meetings concerning solely internal union affairs

· Voting time (unless required by state law)

· Waiting after relieved of duty for a specified period of time that allows employee to engage in personal activity

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