Wage And Hour Claims

Mr. Padilla advises business owners, employees and investors on wage and hour law. Complex federal and Florida laws control minimum wages and other hourly worker pay matters.

The Fair Labor Standards Act

The Fair Labor Standards Act of 1938 (FLSA) provides that covered employers must pay at least minimum wage and overtime. The FLSA also imposes record-keeping requirements and standards for employing people under age 16.

Minimum wage under the FLSA

Effective July 24, 2009, the federal minimum wage is $7.25 per hour. Florida's minimum wage is actually $7.93 per hour, effective on January 1, 2014, with a minimum wage of $4.91 per hour for tipped employees, plus tips. Where both state and federal minimum wage laws apply, the employer must pay the higher of the two.

Overtime hours

The FLSA states that nonexempt employees must receive overtime pay for all hours worked over 40 during a workweek at a rate of at least one and a half times the employee's regular rate. The FLSA defines "workweek" as any fixed period of 168 hours in seven consecutive 24-hour periods. The employee can be required to work any number of hours during the workweek, although there are limits for those under age 16. Holiday pay and other special pay, such as double or premium pay, for work performed on the weekends or other normal day off is not required, unless an employee works overtime on such days.

Tipped employees

Employers of workers who customarily and regularly receive more than $30 a month in tips may take into account such tips as part of wages, but must pay a direct wage of at least $4.19 per hour. Florida's minimum wage for tipped employees is $4.91 per hour, plus tips. An employer electing to use the "tip credit" provision must:

  • Inform tipped employees that it will be taking the tip credit allowance (including the amount to be credited) before the tip credit is applied;
  • Be able to show that each tipped employee receives at least the minimum wage when direct wages and the tip credit allowance are added together; and
  • Allow tipped employees to retain all tips, whether or not the employer elects to take a tip credit for tips received, except to the extent that any such employee participates in a valid tip-pooling arrangement

What constitutes hours worked?

The entire time an employee is on the premises of the employer at the request or knowledge of the employer is considered work. This includes when the employee is on call or at a work site at the request of the employer.

Training time

The FLSA states that employees must be paid for time in training required by the employer. If the training is directly related to the employee's job, all training hours must be compensated at the federally mandated minimum wage.

Record-keeping requirements

The FLSA requires all employers to display an official poster in a conspicuous place outlining the FLSA's regulations. Employers are also required to maintain employee time and pay records for the time periods established by the regulations.

Employment of persons under age 20

The FLSA sets forth special provisions for employees under age 16 designed to protect minors and encourage education. The provisions prohibit employment of minors in jobs where the conditions are detrimental to their health. Under the youth employment provisions, an employer may pay a reduced minimum wage of not less than $4.25 per hour for employees under 20 years old during their first 90 days of employment. However, the FLSA prohibits an employer from hiring or taking any action to fire current employees to hire employees at the youth minimum wage.

Retaliation under the FLSA

The FLSA protects employees who make complaints about not receiving the benefits of the FLSA. It is illegal for an employer to terminate an employee for complaining about not being paid, not being paid the federal minimum wage or not being paid overtime. Mr. Padilla also represents employers and business owners in FLSA complaints.

Joint employers

Sometimes an employer will have an employee work at two different locations or for two different companies controlled by the same corporate group. In such cases, these employers may be deemed "joint employers."

If the employee works more than 40 hours per week for the two companies, then the employer would need to pay overtime compensation, despite the fact that the employee worked less than 40 hours for each of the two companies.

Automobile dealers and the flag rate/flag hour system

Many automobile dealers pay shop and mechanic employees a "flag rate" based on predetermined "flag hours" for completion of certain tasks. Under this system, the resulting wage paid to employees must be at least one and a half times the federally mandated minimum wage for all hours worked. Also, the "flag hours" assigned to particular tasks must be predetermined and cannot be manipulated.

Contact Santiago J. Padilla and his team of legal professionals and schedule a consultation by calling 800-483-7197. You may also begin the process by completing and submitting the firm's online contact form.