Fair Labor Standards Act

Question 1

What does the FLSA’s minimum wage provision require?

Answer 1

Under the FLSA, “Every employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, wages at the following rates…except as otherwise provided in this section, not less than–
…
(C) $7.25 an hour, beginning 24 months after that 60th day;

29 U.S.C.A. § 206 (West)

Question 2

What does the FLSA’s overtime provision require?

Answer 2

Under the FLSA, “Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise en-gaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensa-tion for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C.A. § 207 (West)

Question 3

Who can bring a claim under the FLSA?

Answer 3

The FLSA’s protections do not extend to everyone. Only those who are “employees” can assert valid FLSA claims. See Razak v. Uber Techs., Inc., 951 F.3d 137, 142 (3d Cir. 2020).

Question 4

Which party has the initial burden of proving that an employee-employer relationship exists?

Answer 4

a plaintiff seeking compensation under the FLSA has the “initial burden of proving that an employer-employee relationship exists. Benshoff v. City of Va. Beach, 180 F.3d 136, 140 (4th Cir. 1999); see also Brennan, 417 U.S. at 196–97, 94 S.Ct. 2223; Oden, 246 F.3d at 467. Clews v. Cnty. of Schuylkill, 12 F.4th 353, 359 (3d Cir. 2021).

Question 5

Who has the burden of establish the existence of any exemptions to the FLSA?

Answer 5

Once the plaintiff proves the existence of an employer-employee relationship, the employer bears the burden of proving entitlement to any exemptions or exceptions.” Benshoff v. City of Va. Beach, 180 F.3d 136, 140 (4th Cir. 1999); see al-so Brennan, 417 U.S. at 196–97, 94 S.Ct. 2223; Oden, 246 F.3d at 467. Clews v. Cnty. of Schuylkill, 12 F.4th 353, 359 (3d Cir. 2021).

Question 6

What are the elements of a minimum wage claim under the FLSA?

Answer 6

To state a claim for minimum wage violations pursuant to the FLSA, a plaintiff must allege that his/her average hourly wage falls below the federal minimum wage. Razak v. Uber Techs., Inc., No. CV 16-573, 2016 WL 5874822, at *5 (E.D. Pa. Oct. 7, 2016).

Question 7

What are the elements of an overtime claim under the FLSA?

Answer 7

To recover overtime compensation under the FLSA, “an employee must prove that he worked overtime hours without compensation, and he must show the amount and extent of his over-time work as a matter of just and reasonable in-ference.” Davis v. Abington Mem’l Hosp., 765 F.3d 236, 241 (3d Cir. 2014).

Question 8

What must an employer prove to prevail on a good faith defense to an action for liquidated damages under the FLSA?

Answer 8

The courts have interpreted this provision as providing for a two-part inquiry. The first part is a subjective inquiry into the employer’s good faith through an examination of whether it had an honest intention to ascertain what the statute requires and to act accordingly. The second is an objective test of whether the employer had reasonable grounds for believing that its conduct complied with the statute.

Question 9

What damages are available for violating the FLSA’s minimum wage and OT provisions?

Answer 9

“Any employer who violates the provisions of section 206 [“minimum wage”] or section 207 [“maximum hours”] of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b).

Question 10

Can a prevailing plaintiff recover attorneys’ fees under the FLSA?

Answer 10

Yes. “The court in such action shall, in addition to any judgment awarded to the plaintiff or plain-tiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 29 U.S.C. § 216(b); Walker v. Marathon Petroleum Corp., No. 2:22-CV-1273-NR, 2023 WL 4837018, at *5 (W.D. Pa. July 28, 2023)

Question 11

Does the FLSA permit a retaliation claim?

Answer 11

Yes. Under 29 U.S.C. § 215(a)(3), “[i]t shall be unlawful for any person…to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.”

Question 12

Does a plaintiff have to exhaust administrative remedies before filing an FLSA claim in court?

Answer 12

No - can go directly to court.

Question 13

What is the statute of limitations for a typical FLSA claim?

Answer 13

Two years after the cause of action accrued; three years for willful violation

Question 14

What is the statute of limitations for an FLSA claim involving a willful violation?

Answer 14

Three years after the cause of action accrued.

Question 15

Can the FLSA’s minimum wage and OT standards be modified by contract?

Answer 15

No. The Act established baseline standards through “federal minimum-wage, maximum-hour, and overtime guarantees that cannot be modified by contract.” Genesis Healthcare Corp. v. Symczyk, ––– U.S. ––––, 133 S.Ct. 1523, 1527, 185 L.Ed.2d 636 (2013).

Question 16

How does the FLSA define an “employee?”

Answer 16

The FLSA defines “employee” as “any individual employed by an employer.”

Question 17

Are exemptions to FLSA coverage construed broadly or narrowly?

Answer 17

Narrowly. FLSA exemptions should be construed narrowly, that is, against the employer. Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960).

Question 18

Do employers have to pay employees for time spent traveling to and from the worksite?

Answer 18

No. Under the Portal-to-Portal Act, employers need not pay workers either for “traveling to and from the actual place [where they] perform[ ] the principal activity or activities [for which they are] … employed” or for “activities which are preliminary to or post-liminary to said principal activity or activities.” 29 U.S.C. § 254(a); Tyger v. Precision Drilling Corp., No. 22-1613, 2023 WL 5257688, at *1 (3d Cir. Aug. 16, 2023).

Question 19

When is work compensable under the FLSA?

Answer 19

a task is compensable work if it is both integral and indispen-sable to the principal activity, but not if it is pre-or postliminary to that activity. Tyger v. Precision Drilling Corp., No. 22-1613, 2023 WL 5257688, at *1 (3d Cir. Aug. 16, 2023)

Question 20

When is a task “integral” to the principal activity that the employee is hired to perform?

Answer 20

To be integral, a task must be “intrinsic” to the principal activi-ty. Busk, 574 U.S. at 33, 135 S.Ct. 513.

Question 21

When is a task “indispensable” to the principal activity that the employee is hired to perform?

Answer 21

It is indispensable when a worker “cannot dispense” with doing it “if he is to perform his principal activities.” Tyger v. Precision Drilling Corp., No. 22-1613, 2023 WL 5257688, at *1 (3d Cir. Aug. 16, 2023)

Question 22

What is an employee’s “principal activity” under the FLSA?

Answer 22

A “principal activity” is “the productive work that the employee is employed to perform.” Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27, 36 (2014)

Question 23

Does the FLSA require an employer to keep records relating to an employee’s employment?

Answer 23

Yes. The FLSA requires an employer to “make, keep, and pre-serve … records of the persons employed by him and of the wages, hours, and other conditions and practices of employment.” § 211(c).

Question 24

Does an employer have to pay an employee for time spent changing into and out of protective gear?

Answer 24

It depends - employers must sometimes pay workers for time spent changing into and out of protective gear. Tyger v. Preci-sion Drilling Corp., No. 22-1613, 2023 WL 5257688, at *2 (3d Cir. Aug. 16, 2023). But which gear counts is murkier. The inte-gral-and-indispensable “inquiry is fact-intensive and not ame-nable to bright-line rules.” Tyger v. Precision Drilling Corp., No. 22-1613, 2023 WL 5257688, at *2 (3d Cir. Aug. 16, 2023), citing Llorca v. Sheriff, 893 F.3d 1319, 1324 (11th Cir. 2018).

Question 25

What is the de minimis doctrine as it relates to FLSA claims?

Answer 25

Under the de minimis doctrine, when an activity “concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded.” Anderson v. Mt. Clem-ens Pottery Co., 328 U.S. 680, 692 (1946).

Question 26

Does paid time off count as part of an employee's salary for determining if they meet the salary threshold for an exemption under the FLSA?

Answer 26

No - see Higgins v. Bayada Home Health Care Inc., 62 F.4th 755, 761 (3d Cir. 2023). Whereas salary is a fixed amount of compensation that an employee regularly receives, PTO, though having a monetary value, is more appropriately defined as a fringe benefit, which has no effect on the employee's salary or wages, and which may be irregularly paid out, such as when an employee separates from a company.

Question 27

Can more than one employer employ an individual for FLSA purposes?

Answer 27

Yes - they can be joint employers. A “single individual may stand in the relation of an employee to two or more employers at the same time under the [FLSA].” 29 C.F.R. § 791.2(a).

Question 28

What's the test for determining if two entities qualify as joint employers?

Answer 28

In In re Enterprise Litigation, this Court set out the test for whether a defendant is a joint employer. “[D]oes the alleged employer have: (1) authority to hire and fire employees; (2) au-thority to promulgate work rules and assignments, and set con-ditions of employment, including compensation, benefits, and hours; (3) day-to-day supervision, including employee disci-pline; and (4) control of employee records, including payroll, in-surance, taxes, and the like.” 683 F.3d at 469. The Court “emphasize[d], however, that these factors do not constitute an exhaustive list of all potentially relevant facts, and should not be blindly applied.” Id. (emphasis in original) (cleaned up).

Question 29

What factors are used to determine if an individual is an employee or an independent contractor for FLSA purposes?

Answer 29

1) the degree of the alleged employer's right to control the manner in which the work is to be performed ; 2) the alleged employee's opportunity for profit or loss depending upon his managerial skill; 3) the alleged employee's investment in equipment or ma-terials required for his task, or his employment of helpers; 4) whether the service rendered required a special skill; 5) the degree of permanence of the working relationship; [and] 6) whether the service rendered is an integral part of the alleged employer's business. Razak v. Uber Techs., Inc., 951 F.3d 137, 142–43 (3d Cir.), amended, 979 F.3d 192 (3d Cir. 2020)

Question 30

How is an employee's "regular rate" of pay determined?

Answer 30

The regular rate is determined by way of a calculation. It is a “rate per hour” that “is determined by dividing [the] total remu-neration for employment (except statutory exclusions) in any workweek by the total number of hours actually worked by him in that workweek for which such compensation was paid.” 29 C.F.R. § 778.109.

Question 31

Are meal periods lasting longer than 20 minutes compensable under the FLSA?

Answer 31

Courts have assessed the totality of the circumstances to determine, on a case-by-case basis, to whom the benefit of the meal period inures. Most courts derive this approach from Supreme Court precedent holding that “[w]hether time is spent predominantly for the employer's benefit or for the employee's is a question dependent upon all the circumstances of the case.” Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944), superseded on other grounds, Portal–to–Portal Act of 1947, codified at 29 U.S.C. §§ 251–262.

Question 32

Are short breaks lasting 5-20 minutes compensable under the FLSA?

Answer 32

The FLSA does not require employers to provide their employ-ees with breaks. However, if an employer chooses to provide short breaks of five to twenty minutes, the employer is required to compensate employees for such breaks as hours worked. Sec’y United States Dep’t of Lab. V. Am. Future Sys., Inc., 873 F.3d 420, 425 (3d Cir. 2017); see also 29 C.F.R. § 785.18 (“[r]est periods of short duration, running from 5 minutes to about 20 minutes, are common in industry …. They must be counted as hours worked.”).

Question 33

Does the FLSA require an employer to provide breaks to employees?

Answer 33

The FLSA does not require employers to provide their employ-ees with breaks. However, if an employer chooses to provide short breaks of five to twenty minutes, the employer is required to compensate employees for such breaks as hours worked. Sec’y United States Dep’t of Lab. V. Am. Future Sys., Inc., 873 F.3d 420, 425 (3d Cir. 2017); see also 29 C.F.R. § 785.18 (“[r]est periods of short duration, running from 5 minutes to about 20 minutes, are common in industry …. They must be counted as hours worked.”).

Question 34

If an employer discovers that it has made excess OT payments to an employee, can it sue to recover the payments?

Answer 34

No. There is no cause of action for employers in the FLSA. Once an employer agrees to pay a given amount of overtime pay, the employer may not sue to recover excess pay under the statute. The FLSA is a shield for employers, not a sword. Wheeler v. Hampton Twp., 399 F.3d 238, 244 (3d Cir. 2005)

Question 35

What constitutes a "willful" violation under the FLSA?

Answer 35

Willfulness under the FLSA is established where “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the [FLSA.]” McLaughlin, 486 U.S. at 133, 108 S.Ct. 1677. It does not require a showing of egregiousness. Hazen, 507 U.S. at 617, 113 S.Ct. 1701. Stone v. Troy Constr., LLC, 935 F.3d 141, 150 (3d Cir. 2019)