FLSA Glossary

Attorneys' Fees. Successful FLSA Plaintiffs are entitled to an additional award for "reasonable attorneys' fees" (plus reimbursement for many out-of-pocket expenses incurred in litigating the lawsuit). Employees are not responsible for paying an employer's attorneys' fees unless their lawsuit is frivolous.

Compensatory Time. Comp. time in lieu of cash for FLSA overtime is not generally permitted in the private sector. Under certain circumstances a public employer may pay (at least some) FLSA overtime with "comp. time" instead of cash.

Control the Work. It is the employer's responsibility (and privilege) to control the work of its employees. If an employer does not wish work to be performed it must prohibit it. An employer may not sit back and accept the benefits of work performed without appropriately compensating employees.

Department of Labor (DOL). The FLSA is a federal statute, regulated and administered by the United States Department of Labor. The US DOL website is linked to this one at Resources.

Duties Test. The "duties test" is one way the FLSA distinguishes exempt from nonexempt employees. Irrespective of how they are paid (salary or hourly), to be exempt from the FLSA overtime rules requires that employees perform relatively high-level job tasks. For more about this see FLSA Coverage.

"Early to Work" -- "Late after Work." Nonexempt employees must be paid FLSA overtime based on all the work they actually do, including performing work outside of normal shift times (provided only that this was "suffered or permitted" by the employer). For more about this see FLSA Overtime.

Exempt and Nonexempt Employees. Non-exempt employees are covered under the FLSA overtime rules. Exempt employees are not. For more on this see FLSA Coverage.

Fair Labor Standards Act. Federal labor law of general and nationwide application, including Overtime, Minimum Wage, Equal Pay Act. Also known as the FLSA, or the "Garcia Act." Located at 29 USC§§201 et seq.

Hours Worked. FLSA wages are determined by the number of hours an employee actually works. All time actually worked counts, but only time actually worked counts. "Hours not worked" are not governed by the FLSA, even if they are considered "work time" or "paid time" by the employer. Thus, "off the clock" work counts, but holidays, sick days, or other days off do not count as FLSA hours worked. For more about this see FLSA Overtime.

Joint Employment -- Dual Employment. "Joint employment" refers to employees working the same job for two "different" employers. All hours must generally be aggregated, and each joint employer is equally responsible for wages, unless they are truly "separate and independent." "Dual employment" refers to employees performing separate jobs for the same employer. All hours must generally be aggregated for purposes of FLSA overtime wage computations.

Liquidated Damages. Successful FLSA plaintiffs are usually entitled to recover double the amount of improperly unpaid back wages. This is called "liquidated damages" and is essentially in lieu of interest.

Meal Periods. The FLSA does not require meal periods. However, if there are meal periods permitted, they count as compensable hours worked unless the the employee is actually relieved from active job duties. If an employee actually gets an uninterrupted meal period. while free from active duties, the time need not be counted as work time.

"Off-the-Clock Work." Also known as "off duty" work. Job-related activities performed by employees outside of normal working hours, such as "homework," equipment maintenance, "staying late" (without "putting in" for overtime), etc. Many FLSA cases involve employers not capturing and compensating off-the-clock work by employees. For more about this see FLSA Overtime.

On Call. Nothing in the FLSA prohibits an employer from requiring employees to be "on call." Off-premises on call or standby time is not required to be counted as work time except under rare, peculiar and unusual circumstances.

Paydays. FLSA wages must be paid "when due," which usually means at the next regularly scheduled payday. "Late payment" of wages is the equivalent of "nonpayment" of wages for most FLSA purposes. The FLSA does not prescribe how frequently wages must be paid. "Pay periods" may be different from "work weeks" or "work periods."

Regular Rate. FLSA overtime is calculated at time and one-half of an employee's "regular rate" of pay. Subject to some special rules, the regular rate is the total non-overtime compensation received by an employee (for work) divided by the number of non-overtime hours these wages are intended to compensate. Most wage "augments" must be included in the regular rate, such as longevity pay or shift differentials.

Retaliation and Discrimination. The FLSA prohibits retaliation or discrimination in the terms and conditions of employment against employees for asserting rights under the FLSA. The anti-discrimination and anti-retaliation provisions have teeth, and are interpreted liberally in favor of employees. For more about this see Retaliation.

Salary Basis Test. An employee is paid on a salary basis if s/he has a "guaranteed minimum" amount of money s/he can count on receiving in the paycheck for any work period during which s/he performs "any" work. The "salary basis test" is one way the FLSA distinguishes exempt from nonexempt employees. No matter what an employee's job duties are, with only a few exceptions s/he is nonexempt unless s/he is also paid on a salary basis. On the other hand, merely paying an employee on a salary basis rather than hourly does not make the employee exempt unless s/he also performs relatively high-level job duties. For more on this see FLSA Coverage.

"7(K)" Exemption. Section 207(a) of the FLSA requires employers to pay their employees overtime compensation for all hours worked over 40 hours per week. Section 207(k) provides a potential limited exemption from the overtime provisions of the FLSA for public agency employees who are engaged in "fire protection activities" or "law enforcement activities." In essence, "alternative 7(k) work periods" change the normal seven day, forty hour work week to "work periods" of from seven to twenty?eight days, with overtime owed for hours worked over a "threshold" per work period, which are larger than forty hours per week.

State Law. Some States may have wages and hours laws similar to the FLSA. State law wages and hours laws are in addition to FLSA requirements, and do not supersede the FLSA. Employees typically are entitled to the benefits of the federal FLSA or their State wages and hours laws, whichever are better.

Statute of Limitations. The normal FLSA statute of limitations entitles employees to recover back wages beginning two years before a complaint is filed and extending forward until the case is resolved. The statute of limitations is three years if the employer "willfully" or "recklessly" disregarded its FLSA obligations. An employee's FLSA rights become "vested" only by the filing of a complaint in court.

Settlements. The FLSA provides two and only two mechanisms for an employee and employer to enter into a "binding" settlement of FLSA claims. One is to settle a matter under the "supervision" of the U.S. Department of Labor. The other is to settle a matter in the course of litigation. A settlement made with DOL supervision, or in litigation, will be binding, and operates as a waiver of additional claims by the employee.

Straight Time. The FLSA has limited application to straight time wages, except for minimum wage laws. The only time the FLSA requires straight time pay at an employee's regular rate is when the employee has worked FLSA overtime.

"Thresholds" and "Gaps." The FLSA requires overtime for hours worked over forty per week; in the slang this is called the FLSA "threshold." Sometimes employees work less than forty "regular" on-the-clock hours in a week, for example when they take a day off. The difference between the number of regular, on-the-clock hours worked in a week and the FLSA overtime threshold is sometimes called "gap" time. Employees are entitled to FLSA overtime pay only if and to the extent that their total hours worked in a work week exceed the threshold. However, until an employee actually works more than the threshold, no FLSA overtime is owed.

Training Time. Training time is generally compensable working time, with exceptions. Training time is not working time if it is specifically required by the law of a "higher jurisdiction" as a condition of employment. Training time is also not working time if it is (a) outside of the employee's regular working hours; and, (b) strictly voluntary; and, (c) not directly related to the employee's job; and (d) the employee must not perform any (other) productive work during the training.

Waiver. FLSA rights may not be waived, by collective bargaining agreements, employment contracts, or otherwise. Generally, an employee is entitled to FLSA rights or collective bargaining rights, whichever are better. "Failure to ask" for FLSA compensation is almost always irrelevant. Failure to use administrative procedures is irrelevant. Work. Most "job-related" activities are considered work under the FLSA, and must be compensated accordingly. Work includes activities which "benefit the employer" and which the employer "knows or has reason to believe" the employee is performing.

Work Weeks. The FLSA requires that wages due be calculated on a work week by work week basis. A work week is seven consecutive days. Work schedules must be translated into work weeks to determine FLSA wages due. (Some employees may have work periods different from seven days.)