Key Provisions of the FLSA Most Businesses Must Uphold

The Fair Labor Standards Act (FLSA) is a federal law governing such employee issues as the minimum wage, overtime pay, child labor restrictions and record-keeping practices. It’s the duty of the Wage and Hour Division of the Department of Labor to administer this law.

The FLSA benefits exempt and nonexempt employees somewhat differently. For example, exempt employees do not have a federally guaranteed right to overtime pay — and minimum wage provisions usually don’t apply to them. Company executives and “outside sales” employees are among those who often hold exempt positions. Human resource personnel must fully understand the different rights that apply to these distinct classifications.

Here’s some additional information on jobs not usually covered by overtime pay, the wages owed to nonexempt employees, laws designed to safeguard children and basic ways that the DOL enforces violations of the Fair Labor Standards Act.

Workers or specific professions often exempt from overtime pay

  • Railroad and air carrier employees
  • Taxi drivers and some motor carrier workers
  • Those employed on American vessels at sea
  • Local delivery workers who are compensated under specific rate plans
  • News editors, announcers and chief engineers working for non-broadcasting stations
  • Farmworkers

Basic nonexempt employee wage rights

The current minimum wage in Texas is $7.25 an hour. However, waitstaff and other employees are governed by unique standards that are supposed to bring them up near (or equal to) the minimum wage. In addition to the wage rights set forth under the FLSA, state and municipal laws often provide somewhat higher minimum wages to nonexempt employees. Your Houston employment law attorney can update you on any recent changes in Texas law on this point.

Another important wage guarantee provided by the FLSA involves overtime pay. Nonexempt employees who work over 40 hours per week must be paid one and one-half times their regular pay rate for additional hours. Therefore, if a nonexempt employee normally earns $12 an hour – and is asked to work five extra hours one week – that employee must be paid $18 an hour for each of the additional five hours (in addition to the regular rate of pay for the 40 hours).

In some states, there are laws limiting how many hours a day a worker can be on duty. All employers must make sure they honor such provisions.

Federal job protections designed to benefit children

In most workplace settings, children must be age 16 or older to hold down a job – although they must be at least 18 years old to drive a motor vehicle for an employer – or to work in mining. However, exceptions have been made so that the FLSA does not apply to child actors, kids delivering newspapers or those making simple crafts at home.

Unfortunately, few restrictions protect children who’ve been hired as farm labor. Once a waiver has been obtained from the Department of Labor (DOL), a child as young as 10 or 11 can be hired to help with hand harvest labor.

There is also a “youth minimum wage” that applies to children (age 20 and younger) that’s equal to $4.25 an hour; it can be paid for 90 consecutive days of work. This makes summer jobs for teenagers easier to come by – although the pay isn’t very high. However, employers cannot displace any older workers receiving the standard minimum wage to simply save money by hiring teenagers at that lower pay rate.

The DOL’s Wage and Hour Division is charged with enforcing the FLSA

A complaint can be filed against businesses that violate any FLSA employee rights. While willful violations can be prosecuted in a criminal court, less serious or unintentional mishandling of FLSA duties may only result in civil liability. For example, if your office hires employees below the age of 16, you might be required to pay a fine of up to $1,000 for each underage young person on your payroll. A civil court might also impose specific changes in the way you handle certain hiring and record-keeping practices to prevent similar mistakes in the future.

Should the Wage and Hour Division decide that your company has failed to fully pay all that’s owed to specific workers, it can file suit against you to recover the unpaid sums of money — or obtain an injunction that will forbid any further violations of the FLSA.

If you’re uncertain whether your office is in full compliance with all FLSA regulations and all relevant Texas employment law statutes — please feel free to contact one of our Murray Lobb attorneys. We can help you review all your current practices involving the payment of a minimum wage, proper classification of all workers, the handling of overtime assignments and any other duties covered by the FLSA. A periodic review of all these workplace standards can help your business avoid any fines or lawsuits.

Always Interact Carefully with Workers on FMLA Leave

For over 20 years, the Family Medical Leave Act has helped millions of qualified employees take time off from their jobs to address serious family or personal medical issues. While it’s important to provide critical job security at such times, employers still retain the right to make important business decisions – even when FMLA rights are being lawfully exercised.

Some of the most challenging administrative issues that come up with the FMLA involve disabled employees who are covered by ADA provisions — and those who have filed worker’s compensation claims. Yet any employee’s situation can prove problematic – especially when the person has used all the FMLA time allowed – and is now requesting even more time off due to continuing medical problems.

What follows is a brief overview of an employer’s responsibility to rehire employees on FMLA leave and events that might justify firing or laying off an employee on this type of leave. The article concludes with a look at how you should respond when an employee requests additional time off after using the full 12 weeks allowed under the FMLA in a calendar year.

Must you always allow employees on FMLA leave to return to their previous positions?

The FMLA requires employers to allow workers to return to their former positions (or jobs similar in duties and pay) upon exhausting all available leave time. If a business or office covered by the FMLA fails to do this, the employee asking to return can sue for sizeable damages. However, this employee right isn’t absolute — for reasons referenced below.

What if your office had already planned to lay off everyone in the absent employee’s unit?

Employees seeking to return from FMLA leave do not have any rights that are greater than what they would have had if they had not taken leave time. In other words, if your company had already been planning to lay off everyone in the same unit as the employee who is now on leave and asking to come back – that person doesn’t have an absolute right to return.

However, you should still move forward cautiously with laying off this individual, especially if your office had not already fully documented the impending layoff. It’s always best to first consult with your Houston employment law attorney before terminating any employee away on FMLA leave — or who has been absent due to any other medically-related issue.

What if you became aware of misconduct when an employee is away on FMLA leave?

If you have learned since the absent employee’s leave started that s/he committed some type of prior fraud or malfeasance against your company, you can terminate the employee for cause. Of course, you must have very clear proof of the fraud (or gross misconduct) before terminating the employee. In many instances, you’ll probably need to meet with the employee before letting them go so they can respond to the evidence you’ve uncovered.

It’s also possible that an employee might commit some type of fraud against your company while on FMLA leave. For example, the employee might fraudulently use company-issued credit cards for personal gain without permission — or share proprietary business information with a competitor. It’s always wise to ask your attorney to evaluate the grounds for termination before terminating any employee.

What should you do when an employee asks for more than 12 weeks of FMLA leave?

While the Family Medical Leave Act does not guarantee any qualified worker more than 12 weeks of time off during any 12-month period, you should never try to immediately fire someone who claims to be too ill to return. For example, when a disabled employee has taken the full amount of time off to address medical problems under the FMLA, you may have an obligation to provide that person with additional time off – if doing so might lawfully be considered a “reasonable accommodation” under the ADA. However, no employee is entitled to unlimited leave.

Likewise, an employee who has already filed a worker’s compensation claim may still be too injured to return. Always consult with your lawyer before trying to fire these employees – since state worker’s compensation laws and ADA provisions may dictate your next steps. Should any employee simply take additional leave beyond 12 weeks without discussing their needs with you, such behavior could subject them to termination. Employers are always entitled to ask how long a leave is being requested.

While the potential problems tied to administering the FMLA are almost limitless, the discussion provided above should provide you with some useful guidance.

If you need advice on properly administering the FMLA or interacting with employees who have requested any type of leave, please feel free to contact one of our Murray Lobb attorneys. We’ve been providing this type of legal advice for many years and can help you respond fairly to all employee management issues.

Is Your Business Honoring All Federally Protected Employee Rights?

Most personnel managers must work hard to keep up with all the federally guaranteed rights owed to employees and job applicants. And when small companies aren’t required to do the same, they should still try to offer all the legal rights referenced below since every office runs more smoothly when employees are treated with respect and granted as many rights as possible. Employers must also be sure they’re upholding all state employment laws that are often more favorable to employees.

Although many federal laws govern various employee rights, there are five specific ones that set the core standards involving discrimination — and provide fairness when addressing worker hours, wages and time off to handle urgent medical needs. All business supervisors and managers can benefit from reviewing the following brief summaries of Title VII, The Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA).

Basic employment standards established by Title VII

Businesses with 15 or more employees must abide by the full provisions of this law. While some might assume that employers with fewer than 15 employees can openly discriminate, lawyers frequently point out that other federal statutes (42 USC Sections 1981 and 1983) still protect ethnic and racial minorities against discrimination. These statutes govern the formation of contracts — and hiring employees always involves some type of oral or written contract.

Title VII strictly forbids all employers from discriminating against anyone regarding all

possible terms and conditions of employment. Therefore, employers cannot discriminate when handling any of the following activities.

  • Recruiting and hiring
  • Training and assigning work
  • Evaluating or measuring work performance
  • Disciplining
  • Promoting and transferring
  • Providing all promised benefits – including those owed after employment ends
  • Discharging

If your office has any questions about these standards, it’s best to contact your Houston employment law attorney to discuss your specific concerns in greater detail.

Employee rights guaranteed by the ADEA

While it may seem like a non-existent problem to younger workers, discrimination against older employees often incurs in many workplaces, especially when workers are nearing retirement when added benefits will likely vest. The Age Discrimination in Employment Act is designed to protect all employees age 40 and older when they work for an employer with at least 20 total employees.

All the basic employer activities listed above (regarding Title VII) must be applied fairly to older workers. Stated differently, the federal government forbids treating younger workers in a preferred manner over older workers who often have both strong skills and highly valuable years of experience.

Rights guaranteed under the ADA to the disabled

When a job applicant or hired employee can demonstrate his or her ability to handle all required job functions – without or without reasonable accommodations – discrimination is strictly forbidden. The ADA defines a disability as a physical or mental impairment that substantially limits any of a person’s major life functions or activities.

Reasonable accommodations should be offered to help the disabled person fully perform all required tasks, unless such adjustments would result in a fundamental alteration or change in meeting the employer’s program needs.

While the ADA has helped many workers, there’s still a need for greater societal change since many employers who can see a job applicant’s disabilities will privately opt to only hire those who don’t appear to have any cognitive or mobility issues.

Rights provided by the FLSA to all employees

The federal government has used the Fair Labor Standards Act to establish basic standards governing worker hours, minimum rates of pay and the handling of overtime hours. However, state law can offer more favorable rights, including a higher minimum wage.

Individual employers often choose to designate workers as either at-will employees who can be dismissed without cause or contract employees who must be provided with just reasons for their dismissal. The U. S. Department of Labor (DOL) states that if a company is a covered “enterprise,” and its workers are not exempt (or contract employees), the company must comply with all the FLSA provisions. Since determining what constitutes an “enterprise” isn’t always straightforward, you may need the help of your employment law attorney to interpret this for you. However, the DOL states that even if a company doesn’t qualify as a covered enterprise, all of its employees may still be protected by the FLSA provisions if their assigned tasks meet “interstate commerce” requirements.

Worker privileges available under the Family Medical Leave Act

This legislation applies to private employers with 50 or more employees working within 75 miles of the employer’s main worksite. To qualify for the extended leave provided under the FMLA, workers must have been employed by the company for at least twelve (12) months prior to making a request — and meet other specific criteria set forth under the law. Employees are supposed to be reinstated to their past jobs (or very similar ones) upon returning.

The FMLA is often used by a worker to care for a very ill, immediate family member or when the covered employee is personally battling a serious medical condition. Great care must be exercised when any worker states that s/he is not yet physically able to return once the full amount of leave allowed has been used (to avoid running afoul of provisions of state disability laws and the ADA.)

If you have any questions regarding how your office should apply any state or federal laws to employee issues, please don’t hesitate to call one of our Murray Lobb attorneys. We can also provide you with legal advice as to how some of these laws may have been recently modified by new Texas statutes.