10.2.1 The Fair Labor Standards Act

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.