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Fair Wages FAQ

Should I get paid overtime wages?

There are two sets of laws that may apply. First, you need to know whether your employer falls under the Fair Labor Standards Act (FLSA). The FLSA is federal law that establishes the right to overtime wages and typically guarantees time and a half for overtime pay. Second, most states have laws concerning wages and overtime, so be sure to check your state's laws as well. Both the Fair Labor Standards Act and state laws cover a wide range of circumstances, so it's likely that your employer must comply with at least one of them.

To determine whether the FLSA covers you, generally you must qualify as a "nonexempt" employee. Nonexempt employees fall under the FLSA's protection, and you are generally entitled to overtime pay. To be a "nonexempt" employee, you must generally satisfy a 3-part test:

  • Salary level test: employees who are paid less than $23,600 per year ($455 per week) are nonexempt.
  • Salary basis test: the Fair Labor Standards Act generally covers non-salaried employees, so you must determine whether you are a salaried employee or not. Whether an employee is paid on a salary basis is not affected by how your employer classifies your compensation, but rather is dependent on whether the employee in fact has a "guaranteed minimum" amount of he or she can depend on. If you have a guaranteed minimum, you are likely considered salaried.
  • Duties test: the FLSA generally excludes "management" activities and so the final question is what activities you are performing. A good rule of thumb is deciding who is "in charge". If you are "in charge" during a given shift, then the FLSA likely doesn't apply.

If you get paid less than $23,600 per year ($455 per week), are not salaried are not "management" and are not employed in a position that is not entitled to overtime pay,then the FLSA likely covers your situation since you are a "nonexempt" and thus eligible for FLSA protection.

Typical jobs that are not entitled to overtime include:

  • Independent contractors
  • Volunteers
  • Computer specialists (who earn at least $27.63/hr)
  • Outside salespeople (who work away from the business)
  • Baby sitters and other informal personal companions (not including those offering nursing care or domestic work)
  • Amusement park employees
  • Newspaper deliverers
  • Small farm employees

Can I receive less than the minimum wage if I get paid in tips?

In many states, yes. Typically, employers must give minimum wages to all employees covered by state and federal wage and hour laws. The actual amount of the minimum wage is either the federal minimum wage ($7.55 per hour as of July 25, 2009) or the state's minimum wage, whichever is higher.

If you earn tips, however, the law becomes more complicated. If you earn more than $30 in tips per month, employers can pay you as little as $2.13/hr under federal law, but only if the total amount of your wages and tips equal the minimum wage for each hour you worked.

Note that some states, such as California, do not allow this and require employers to pay minimum wage even when employees receive tips. Other states a wage somewhere in between - more than $2.13, but less than the state or federalminimum wage. The best way to find out what your state requires, visit the Department of Labor at: http://www.dol.gov/esa-redesign_eric/whd/state/tipped.htm

Can I take a break from work after I have my baby? Do I get paid ?

The Family and Medical Leave Act (FMLA) requires covered employers to provide up to 12 workweeks of unpaid leave for one or more of the following reasons:

  • For the birth and care of the newborn child
  • For placement with the employee of a son or daughter for adoption or foster care
  • To care for an immediate family member (spouse, child, or parent) with a serious health condition;
  • To take medical leave when the employee is unable to work because of a serious health condition.

To be eligible to take leave under the FMLA, you must:

  • work for a covered employer
  • work 1,250 hours during the 12 months prior to the start of leave
  • work at a location where 50 or more employees work at that location or within 75 miles of it, and
  • have worked for the employer for 12 months. The 12 months of employment are not required to be consecutive in order for the employee to qualify for FMLA leave.

In addition to the FMLA, many states have similar laws which allow employees to take

unpaid time off for pregnancies. To learn more details about the FMLA, visit the Department of Labor at: http://www.dol.gov/whd/fmla/index.htm

Should I get paid for time spent on required training?

Yes. If the training is required, you should be paid for that time. Common examples include mandatory orientation and sexual harassment training, which includes travel time if the training is offsite.

I've been called up in the National Guard, will I still have a job when my deployment is over?

The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects service members' reemployment rights when returning from a period of service in the uniformed services, including those called up from the reserves or National Guard, and prohibits employer discrimination based on military service or obligation. This means that returning service members are to be reemployed in the job that they would have attained had they not been absent for military service, with the same seniority, status and pay, as well as other rights and benefits.

For more information, see Findlaw: Military Service and Re-employment Rights.

If I've been called to National Guard Duty, can my wife take time off from work to prepare for my deployment?

She should ask her employer. While it isn't legal required, many businesses already offer this type of leave.

Can my employer require me to take my breaks off the clock?

Federal law does not require breaks. However, when employers do offer short breaks (usually lasting about 5 to 20 minutes), federal law considers the breaks as compensable work hours that would be included in the sum of hours worked during the work week and considered in determining if overtime was worked. Some states do regulate breaks, so check your local and state laws as well.

Can I take time off work to vote?

Typically yes, especially if you would otherwise be unable to vote. Almost every state has laws requiring employers to give employees time off to vote. Note that in many states, however, you are required to give your employer notice that you need the time off.

For more information, see Findlaw: Taking Time Off for Voting and Jury Duty

Can I take time off of work for safety reasons?

In some states, employees can get time off of work to: get counseling or medical attention, domestic violence issues, restraining orders, and acquire new housing. State laws vary greatly in what they allow and the requirements, and generally such leave is unpaid.

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