Fair Labor Standards Act - What It Does and Does Not Do

The FLSA does cover:

  1. Minimum wage and overtime - federal minimum wage is $7.25 per hour (it is the same level under Texas state law) - overtime is generally at time-and-a-half for all hours worked in excess of 40 in a seven-day workweek. Individual state minimum wage laws do not apply unless the FLSA does not apply - for all practical purposes, businesses can assume that all of their employees are covered under the federal wage and hour laws. An agreement between an employer and an employee that minimum wage and overtime will not be paid is void and unenforceable (even in the event of unauthorized overtime), based upon two U.S. Supreme Court decisions from the 1940s: Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 65 S.Ct. 895, 89 L.Ed. 1296 (1945) and D.A. Schulte, Inc. v. Gangi, 328 U.S. 108, 66 S.Ct. 925, 90 L.Ed. 1114 (1946).

  2. Equal pay for men and women - - Equal Pay Act - men and women who perform the same job at the same levels of skill, experience, qualification, and responsibility must be paid the same - this is not the same as "equal pay for comparable work", a rule followed by only a handful of individual states - violation of this law raises a gender discrimination issue, which is why complaints are investigated by the EEOC. For comparison purposes, all compensation for work performed is counted, including regular wages, bonuses, commissions, and so on, as well as the value of fringe benefits such as tuition assistance, paid leave, and similar benefits with measurable value. Differences in pay must be supported by business-related factors, i.e., may not be based on gender or other minority characteristics. For enforcement purposes, transgender employees would be considered according to the gender in which they present themselves. The EEOC regulations regarding equal pay are in 29 C.F.R. Part 1620.

  3. Child labor - in most situations, children younger than 14 may not work for an employer. Children ages 14 and 15 may work, but only in non-hazardous occupations and only during non-school hours; there is also a substantial limitation on the number of hours they can work each day and week. Children ages 16 and 17 may work any hours they want, but may not work in hazardous occupations. Once a person reaches age 18, there is no limitation on either hours or duties (other than whatever OSHA rules may apply).

The FLSA does not require:

Optional employee benefits and payroll practices not required under any law - this category includes such things as:

  1. Breaks - although some states require breaks, Texas and most other states do not - federal law has no break requirement, other than OSHA rules about restroom breaks for sanitation purposes (see https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=22932&p_table=INTERPRETATIONS) - the only exceptions are found in special regulations relating to highly hazardous occupations such as high-altitude steel erection workers or nuclear plant workers - most companies do allow some sort of breaks, however, in their policies.

    1. Breast-pumping / nursing breaks - these are unpaid breaks - under the 2010 health care reform bill, new FLSA section 207(r)(1) requires employers to give non-exempt nursing mothers reasonable break times to express breast milk, or if children are allowed in the office, nurse their infants, during the first year after the baby's birth (for more information, see "Nursing Mothers" in this outline).

    2. "Coffee breaks" (rest breaks) are paid, since they are regarded as promoting productivity and efficiency on the part of employees and thus benefit the employer - 20 minutes or less in duration.

    3. "Smoking breaks" - smoking breaks are not required under Texas or federal law, are in the same category as rest breaks (see above), and may be controlled in any way with appropriate policies.

    4. "Lunch breaks" are unpaid - defined as 30 minutes or longer for the purpose of eating a meal - employee must be "fully relieved of duties" during the meal break - if employee is answering phones, filing, or otherwise working while eating, the "break" is counted as regular work time.

  2. Premium, holiday, and weekend pay - this is extra pay for unusual hours, such as "double time" or "triple time" pay for working extra overtime or during times when most employees take off - this is not required under any law, but is often a matter of supply and demand, i.e., whatever is necessary to get employees to be available at unusual times.

  3. Shift differentials - defined as higher hourly pay for second or third shifts, as opposed to the normal hourly rate given to workers on the daytime shift - as with "premium pay" above, this is a function of supply and demand.

  4. Raises - not required under state or federal laws, unless the minimum wage is increased on either the federal or the state level. However, even though raises are not required, withdrawing a raise that has previously been promised could give an employee good cause to quit. Important: once a raise goes into effect, the employer must pay it until it is withdrawn - it may be withdrawn only prospectively, never retroactively - a retroactive pay cut will always violate the law.

  5. Pensions - pension or retirement plans are not required - however, keep the "1000-hour rule" in mind in case you have a pension plan and any workers who work at least 1000 hours in a 12-month period.

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