The Law Q&A | Fair Labor Standards Act focuses on wages, rights of workers

The Law Q&A | Fair Labor Standards Act focuses on wages, rights of workers

Following the 45th U.S. president's executive recent order freezing government workers' pay after the new year, the American Federation of Government Employees union sued POTUS 45 claiming violations of federal wage law.

The claim is based on the Fair Labor Standards Act. What the heck is the FLSA?

It is a federal law requiring all employers who are engaged in interstate commerce or make goods for commerce to provide minimum wage payment and other worker rights to their employees. Generally, an employer grossing $500,000 in a year in business satisfies being under the act.

Among other protections, the act thus requires a minimum wage to be paid to the employees and sets limits on the number of hours per week to be employed and the overtime required if working beyond those hours.

The wage earner has to fall within the definitions of the act. Among the most common exemptions are people hired as independent contractors, or persons treated as professional, administrative and executive employees — typically salaried and not paid by the hour.

Independent contractors generally are workers who are contracted to perform particular tasks; pay their own tax on the income made from their contractors; have and use particular skills or methods honed in the specialized tasks they are hired to perform; and/or use their own financial resources or tools to perform the tasks.

Thus, an employer simply claiming someone is an independent contractor won't cut the mustard in getting exempted under the act. It is a heavy burden for an employer to get exempted from FLSA. And persons can be employed by more than one employer under FLSA.

The employer must pay one and a half times their regular rate for all hours worked over 40 per week.

Minimum wage must be paid except in the jobs where the worker gets more than $30 a month in tips. The employer must make up the difference if the wage and the tips don't match the minimum wage for the hours worked per week.

If a state's minimum wage is higher, that rate must be used. Right now, the federal minimum wage is $7.25 per hour. Commencing in 2019, the Illinois minimum wage will be $8.25 per hour.

In the federal budget dispute, many federal employees have been furloughed — a fancy word meaning we don't pay you, but you don't have to work.

However, many hundreds of thousands have been required to stay at their posts in departments whose funding has run out but are not now going to be paid under POTUS' order. They are deemed essential (like prison guard personnel, persons employed by the Coast Guard, employees in law enforcement and such).

A federal court ruled in 2017 that the 16-day 2013 shutdown was in violation of FLSA and awarded not just back pay, but a punitive amount allowed under FLSA for willful violations.

The union is arguing the same issue exists now, entitling this class of federal employees to get paid now, including their attorneys' fees (and maybe punitive damages — which, of course, will be footed by the taxpayer).

Thanks, Mr. President. And a very happy new year to you, too.

Brett Kepley is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.

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