Fair Labor Standards Act Basic Law and Procedure

Who is covered by the provisions in the Fair Labor Standards Act? How are "hours worked" defined in today's 24/7, BlackBerry, cell phone and laptop world? Does the Fair Labor Standards Act pre-empt state law in determining overtime and minimum wage? These were some of the very basic questions asked and answered at a "Fair Labor Standards Act Basic Law and Procedures" program sponsored by the Section of Labor and Employment Law in Washington, D.C., in mid-May. The program was co-sponsored by the D.C. Bar.

Steven Mandel of the U.S. Department of Labor, noted that the Fair Labor Standards Act applies only where (1) a true employee/employer employment relationship exists, (2) the requirements for either individual or enterprise coverage are met, and (3) the work is performed in the United States or a U.S. possession or territory. A true employer/employee relationship does not encompass the work of independent contractors, trainees and volunteers, and "Unless the employer knows or has reason to believe that an individual is performing work on its behalf, the work performed is not within the purview of an employer/employee relationship."

New situations in application of the FLSA are presenting themselves every day. If you telecommute, your home is generally to be considered "your prescribed workplace." But some things are murkier, such as time an employee spends on a business-related call on his or her cell phone, how being "on call" is defined in relation to hours worked, and how travel time is calculated. The FLSA doesn't guarantee lunch or rest breaks, Mandel pointed out, but short breaks are generally compensable while longer stretches of time – the test usually being "can an employee use the time for his or her own purposes?" – generally are not.

So-called "white collar" exemptions to the Fair Labor Standards Act are many, and include executive, administrative and professional personnel. The professional exemption includes several categories of personnel such as learned professionals, workers engaged in "creative" endeavors, teachers and some computer professionals. Washington, D.C., labor lawyer Molly Elkin led a review of possible professional situations under which the guidelines may or may not apply.

Potential sanctions under the FLSA were also discussed during the session. But "knowing the Fair Labor Standards Act is not enough," warned Joel Cohn of Washington. The FLSA has a non pre-emption clause – state law and regulation on minimum wage, overtime and mandated rest breaks supersede in these employment-related matters.

Course materials for both this program and a companion program on basic law and procedures for the Family Medical Leave Act are available online here.

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