Q:       What is covered under the Fair Labor Standards Act (FLSA)?

A:        Though it regulates other employment issues, the FLSA primarily establishes a federal minimum wage and overtime pay requirements. This article covers the act’s minimum wage provisions.

Q:       Are all employees covered by the FLSA?

A:        The FLSA covers most employees. It applies to any business that grosses at least $500,000 in annual gross volume of sales or business and to any smaller business whose employees are engaged in, or whose duties are directly essential to, interstate commerce. Governmental entities are also subject to the FLSA, although special wage and hour provisions apply.

Q:       Who is exempt from the federal minimum wage requirements?

A:        The federal minimum wage requirements do not apply to:

·                executive, administrative, and professional employees;

·                outside sales employees;

·                certain skilled computer professionals;

·                employees of certain seasonal amusement or recreational establishments;

·                seamen employed on foreign vessels;

·                employees engaged in fishing operations;

·                employees engaged in newspaper delivery;

·                employees of small farms; and

·                casual babysitters and companions to the elderly.

Q:       Do all FLSA-covered employees earn at least the 2012 federal minimum wage of $7.25 per hour?

A:        No. Employees in certain categories may earn less than the federal minimum wage. These include:

·                employees under the age of 20, who may be paid as little as $4.25 per hour for their first 90 consecutive calendar days of employment;

·                “tipped” employees, who may be paid as little as $2.13 per hour, under certain conditions;

·                full-time students, who may be paid as little as $6.16  per hour, under certain conditions;

·                student-learners enrolled in vocational education, who may be paid as little as $5.44 per hour; and

·                individuals whose earning or productive capacities for the work to be performed are impaired by physical or mental disabilities and who may be paid a commensurate wage rate.

Q:       Will the $7.25 federal minimum wage continue to rise in the future?

A:        The federal minimum wage does not increase automatically and a new law must be enacted before the minimum wage can be raised.

Q:       If a state has established a minimum wage, does the federal minimum wage still apply?

A:        Yes. All employees covered by the federal minimum wage must be paid at least that amount.  However, where a state has established a minimum wage that is greater than the federal minimum wage, employers must pay the higher state minimum wage.

Q:       What records must employers keep to comply with the FLSA?

A:        Employers subject to the FLSA must keep, for three years, the payroll information of employees, such as names, addresses, occupations, and hours worked each day and week. They must also maintain the records on which wage computations are based (e.g., time cards) for two years. Employers must allow the Department of Labor access to this information upon request.

Q:       Must employers notify their employees about the federal minimum wage?

A:        Yes. Any employer whose employees are entitled to the federal minimum wage must post a general notice about the FLSA.

Q:       What if an employer does not comply with the federal minimum wage law?

A:        Employers who fail to comply may be investigated by the Department of Labor (DOL). The DOL may recommend changes in employment practices to bring the employer into compliance and can require the employer to pay back wages due to employees. 

            An employer who fails to comply also may face a lawsuit brought by the DOL or by an employee, which may result in an order to provide back pay or damages and a court injunction prohibiting it from continuing its unlawful practice. An employer who willfully and repeatedly violates the FLSA may be subject to an additional penalty of up to $1,100 per violation and may even be prosecuted criminally and fined up to $10,000. The owners and officers of an employer convicted a second time for a willful FLSA violation may face imprisonment.

Q:       Is there a time limit for an employee to file a lawsuit over an FLSA violation?

A:        Yes. An employee must file within two years of the violation or within three years if the violation was willful.

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Cleveland attorneys Keith A. Ashmus, a partner at Frantz Ward LLP, and Jennifer L. Isaacs, an associate at Frantz Ward LLP. Articles appearing in this column are intended to provide broad, general information about the law. For information about a variety of legal topics, visit the OSBA website at www.ohiobar.org. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.