The Fair Labor Standards Act (FLSA) is a federal law that sets standards for minimum wage, overtime pay, and other work-related matters. If you are a worker covered by FLSA, you have some basic protections related to minimum wage and overtime. The Wage and Hour Division of the U.S. Department of Labor administers and enforces the FLSA.
Who is covered by FLSA?
To be covered by FLSA, there must be an employer/employee relationship. FLSA does not cover independent contractors. Sometimes people are called independent contractors when they are really under the control of their employer. To figure out if someone is really an independent contractor, what matters is how much actual independence that person has. In addition to proving an employer/employee relationship, the worker also has the burden to show that his employer was involved in interstate commerce. That means that federal law may not cover some small employers, but state law may include the same employer. An attorney can ask you more questions to help determine whether FLSA covers your employer.
What are the basic protections for workers covered by FLSA?
• Covered workers must be paid the minimum wage, which is currently $7.25 per hour. If you are a farmworker who is paid on a piece-rate basis or paid by the acre, you still must make at least minimum wage for the hours you worked. Piece-rate basis means being paid by how much you pick, produce, etc.
• Covered workers must be paid overtime, which is 1½ the worker’s normal rate of pay (time and a half) for more than 40 hours per week. However, these overtime protections often do not apply to farmworkers, depending on the type of work that they do. Generally, “agricultural” work is exempt from overtime. Farmworkers who work directly with animals raising livestock, who do fieldwork like planting and harvesting, and who detassel corn are not eligible for overtime. However, workers involved in packing and processing operations or workers who construct livestock confinement buildings may be able to claim overtime. The FLSA definition of agriculture is complex, so even if you think you may be exempt from overtime as an agricultural worker, it is a good idea to talk to an attorney to see if that is true.
• The minimum wage and overtime rules apply over an entire workweek. A workweek is seven consecutive days as designated by the employer.
EXAMPLE: On one day—Tuesday—during the workweek, Jacob works 5 hours, and his employer pays him $35 for that day. But for the entire workweek, Jacob worked 40 hours and was paid $290. There is likely not a FLSA minimum wage violation in this because even though the employer paid Jacob less than minimum wage on Tuesday (on Tuesday, he was paid only $7.00/hour), his wages for the workweek equaled minimum wage.
EXAMPLE: Rose works on a piece-rate basis picking blueberries. She is supposed to make $0.52 per pound of blueberries she picks. For the last workweek, Rose worked 40 hours and picked 520 pounds of blueberries. Her employer paid her $270.40 for the workweek.
Does Rose have a claim under FLSA?
• Yes. Rose was not paid minimum wage for hours she worked over the workweek. Instead, her employer paid the piece-rate — $0.52 X 520 pounds = $270.40—which for this particular workweek ended up being LESS THAN minimum wage for her hours worked ($7.25 X 40 = $290).
• However, if Rose had made MORE THAN the minimum wage over the workweek by being paid on the piece-rate basis, she would be entitled to be paid that larger amount. For example, if Rose worked 40 hours and picked 600 pounds of blueberries over the workweek, her pay would be $312 ($0.52 X 600), which is more than $290 (40 X $7.25). Rose would be entitled to the higher amount ($312) calculated on the piece-rate basis.
What can I do if I was not paid all of my wages, not paid the minimum wage or not paid overtime?
It is important to keep your own records of the work you have done for your employer, especially if you are a farmworker. Write down the date you worked. You should also write down the number of hours you worked on that day or the amount of work you performed. For example, you might write down the number of acres of corn you detasseled. Your employer must also give you a written pay statement each time you are paid, showing the total number of hours you worked and—if you are paid on a piece-rate basis—the number of pieces completed during the pay period. Having your own records and the paystubs from your employer is helpful. If you have both, you can review your paystubs and make sure your employer has paid you the minimum wage for all the work shown by your own records.
Save your own records and your pay stubs because an attorney will want to review these documents to assess your claims.