Written by: D. Paul Holdsworth, Esquire
Odds are that if you are an employer, you have needed to consider or anticipate issues related to your employees’ hours and wages. Employee wage and hour protections are set forth primarily in the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq. This article is intended to be a non-exhaustive primer on the basic provisions and requirements of the FLSA.
The FLSA was passed by Congress in 1938 as an effort to “provide minimum wage and overtime protections for workers, to prevent unfair competition among businesses based on subminimum wages, and to spread employment [through an overtime rate scheme].”1
Most states, including Virginia, have statutes and regulations governing wage and hours. To the extent there are differences between the FLSA and the respective state laws, the law—whether or state or federal—which provides greater protection to employees will govern.2
In general terms, the FLSA’s protections broadly cover employees in industries engaged in, or producing goods for, interstate commerce.3 Under the FLSA, employers must pay their employees at a rate of no less than $7.25 per hour (unless the parallel state law requires a higher minimum wage).4 Virginia’s minimum wage is equal to the FLSA rate: $7.25 per hour.5
The FLSA also requires employers to pay their employees at a rate of one-and-one half times the regular rate of pay for all hours worked over forty in a given work week.6 However, there are certain statutory exemptions to the calculation of the overtime rule for employers who do not have traditional workweeks or types of employment. For example, in fire protection and law enforcement, employers are not required to pay overtime as long as the employee works 216 hours or less in a 28-day work period, or a similar ratio for a work period between 7 and 28 days.7 Other exceptions include the health care industry (i.e., 80 hours in a 14-day work period)8 and employment where the employee receives more than half of his compensation from commission on goods or services.9
One of the most frequently litigated issues under the FLSA is whether an employee falls under the “executive, administrative, and professional” exemption,10 thereby relieving the employer of the obligation to pay overtime.
In order for an employer to claim the “executive, administrative, or professional” exemption, the employee at issue must be paid on a salary basis (as opposed to hourly), and must be paid at least $455.00 per week ($23,660 per annum).11
Aside from the salary requirement, there are certain “duties” tests—depending on whether the employee is engaged in an executive, administrative, or a professional capacity—which need to be met for an employer to claim the exemption:
If the employer is claiming the exemption on the theory that its employee is engaged in an executive capacity, the employer must show:
- The employee’s primary duty is to manage either the enterprise in which he or she is employed or a customarily recognized department or subdivision thereof;12
- The employee customarily and regularly directs the work of two or more other employees;13 and
- The employee has the authority to hire or fire other employees (or, alternatively, whose suggestions thereto are given particular weight).14
If the employer is claiming the exemption on the theory that its employee is engaged in an administrative capacity, the employer must show:
- The employee’s primary employment function is office or non-manual work directly related to management policies or general business operations;15 and
- The employee’s duties include the “exercise of discretion and independent judgment with respect to matters of significance.”16
If the employer is claiming the exemption on the theory that its employee is engaged in a professional capacity, the employer must show, among other requirements:
- The employee’s employment requires “knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction”;17 or
- The employee’s employment requires “invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.”18
The potentially nuanced issues affecting employers in the wage and hour context are robust, and it is impossible to anticipate and analyze each such issue here. If you are an employee or employer who has a potential wage and hour question and need specific counsel or guidance, please contact Paul Holdsworth or any of the employment law attorneys at Glenn Feldmann Darby & Goodlatte. We would love to help.
2 See 29 U.S.C. § 218(a).
3 Id. § 202(a).
4 Id. § 206(a).
5 Va. Code Ann. § 40.1-28.10.
6 29 U.S.C. § 207(a).
7 Id. § 207(k).
8 Id. § 207(j)
9 Id. § 207(i)
10 Id. § 213(a)(1).
11 29 C.F.R. § 541.600(a).
12 Id. § 541.100(a)(2).
13 Id. § 541.100(a)(3).
14 Id. § 541.100(a)(4).
15 Id. § 541.200(a).
16 Id. § 541.200(a).
17 Id. § 541.300.
18 Id. § 541.302(a).