Your client may complain being underpaid by either a current or former employer. The primary1  federal wage and hour law is the Fair Labor Standards Act of 1938 (FLSA).2  It sets forth federal requirements for a minimum wage, overtime payments, and record-keeping.3  An employee’s immigration status is irrelevant. FLSA has its own test for determining employee vs. independent contractor status. As a remedial statute, FLSA must be liberally construed. Its provisions cannot be waived.

However, FLSA does not cover all employers and employees. In general, covered employers must have annual sales of at least $500,000 or be engaged in interstate commerce. The law covers private employers as well as federal, state, and local governments. Many workers are explicitly excluded from the statute’s protection regarding either minimum wage, overtime, or both. Statutory exemptions are narrowly construed, and the employer bears the burden of proving that an employee falls within the scope of an exemption.

FLSA covers only time on the job working. Time on call or on standby is covered only if employees cannot use that time as they wish (e.g., they are geographically or otherwise limited). If travel or transportation is necessary to the employment and for the benefit of the employer, the employee must be compensated for that time. Mandatory training of nonexempt employees must also be compensated.

Your client may have a complaint about retaliation for raising a pay violation. It is illegal to discharge or “in any manner discriminate” against an employee because the employee has filed a complaint or instituted any proceeding under FLSA. This anti-retaliation provision protects both written and oral complaints.

FLSA is enforced by the Wage and Hour Division of the U.S. Department of Labor (DOL). The New Orleans DOL office has jurisdiction over FLSA complaints in Louisiana. DOL may pursue criminal charges for willful violations or a civil lawsuit for back pay, penalties, and injunctive relief on an employee’s behalf. However, DOL backlogs may make a private lawsuit preferable; such a suit may recover lost wages, penalties, attorney’s fees, and costs. There is no exhaustion of administrative remedies requirement. Suit under FLSA must be brought within 2 years of the accrual of a cause of action (3 years in the event of a “willful” violation).

• 1There are other federal wage payment laws enforced by the U.S. Department of Labor, including the Davis-Bacon and related Acts, which regulate wage payment and fringe benefits on federally financed or assisted construction. A full list and detailed information about all federal wage and hour laws can be found on the website of the Department of Labor.
• 229 U.S.C. § 201, et seq.
• 3FLSA also restricts child labor.

The federal minimum wage, for covered employees, is still absurdly low. Even lower wage rates are allowed for certain types of workers such as tipped employees, employees under 20 years of age for the first 90 days on the job, student learners, full-time students, and handicapped workers (under certificates issued by the Department of Labor). Nevertheless, your client may have a contract setting a special rate of pay or be in a particular occupation covered by more generous pay laws.

FLSA requires payment in cash or cash equivalent (e.g., food and lodging). The regular rate of pay includes base pay plus premiums, cost of living allowances, bonuses, and fair value of anything the employer provides as part of the pay, so long as the employee voluntarily receives the benefit, it is primarily for the employee’s benefit, and it is not illegal. The rate of pay does not include benefit plan contributions, paid vacations, discretionary bonuses, and so on. Generally, uniforms and essential tools may not be deducted from an employee’s minimum wage.

FLSA does not restrict states or municipalities from establishing a higher minimum wage, but Louisiana has not joined other states that have enacted a higher minimum wage. In fact, in 1997 the Louisiana legislature, responding to attempts in New Orleans to place a referendum for a higher minimum wage on the local ballot, passed La. R.S. 23:642, which prevents local governments from establishing a higher minimum wage.

FLSA does not restrict the number of hours an employee may work, unless a worker is under 16. However, it does require that overtime (1 ½ times the regular rate of pay, colloquially referred to as “time and a half”) be paid any covered employee for any hour worked in excess of 40 hours in a workweek.1  As with the minimum wage, some employees are exempt (e.g., taxi drivers, live-in domestic help, truck drivers). Some employees who work irregular work schedules (e.g., many healthcare workers) may be entitled to overtime even if they work less than 40 hours in a week. Employers do make mistakes on exemptions or by their actions may have forfeited exempt status. For overtime purposes, tips are not counted as part of the regular rate of pay.

There is no generally applicable state law on overtime. However, your client may be covered by a contract or special law.2  Employer policies or customs may also confer enforceable rights.

• 129 U.S.C. § 207.
• 2See, e.g., La. R.S. 33:1999 (firefighters).

Comp time in lieu of payment is usually not legal.1 Only state or government agencies may give time off in place of wages and only under certain conditions.2

• 1 29 U.S.C. § 207(o).
• 2See, e.g., La. R.S. 33:2213.1 (police officers); Knecht v. Bd. of Trs., 591 So. 2d 690 (La. 1991); Jones v. City Par. of E. Baton Rouge, 526 So. 2d 462 (La. App. 1 Cir. 1988); see also Klein v. Rush-Presbyterian-St. Luke’s Med. Ctr., 990 F.2d 279 (7th Cir. 1993).