When an employee believes that he or she has not been properly paid the minimum wage or overtime they may file a complaint for back wages under the Fair Labor Standards Act with the Department of Labor. The federal government set the minimum wage at $7.25 per hour. And when an employee works more than 40 hours in a week, he or she must be paid at a rate of 1 ½ times the regular rate of pay.

However, it is important to note that not all employees are subject to the wage and hour rules of the FLSA. The FLSA only applies to non-exempt employees. The FLSA exempts an employer from both minimum wage and overtime pay for certain categories of employees (executive, administrative, professional, computer and outside sales). In order to qualify for the exemption, the employee must meet certain requirements set forth by the FLSA and make a salary greater than $455 per week.

An employee exempted as a bona fide executive must primarily manage the enterprise or at least a department or subdivision of the enterprise, supervise and direct at least 2 or more full-time employees, and have the authority to hire and fire employees (or have their recommendations as to hiring and firing be given particular weight).

T o qualify for the administrative exemption the employee’s primary duty must be performing office or other non-manual work related to the management or business operations of the enterprise, and the employee must be allowed to utilize discretion and independent judgment with regard to significant work-related matters.

The FLSA recognizes two types of professional employees subject to the exemption. A learned professional must perform work requiring advanced knowledge in the field of science or learning which is acquired by attending a prolonged educational instruction. A creative professional must perform work requiring invention, imagination, originality or talent in a recognized filed of artistic or creative endeavor.

In addition, any employee who performs office or non-manual work and is paid total annual compensation of $100,000 or more is exempt if they regularly perform at least one of the duties of an exempt executive, administrative or professional employee.

A computer employee will be exempt if he or she is employed as a skilled worker in the computer field performing the application of systems analysis techniques and procedures or designing, analyzing, creating, documenting, modifying or testing computer systems, machine operating systems or programs.

The outside sales exemption requires the employee’s primary duty to be making sales or obtaining contracts or orders for services and the employee must be customarily and regularly working away from the employer’s place of business.

Once a complaint is filed with the DOL, the staff will review the complaint to determine if the employee was a non-exempt employee performing work covered by the FLSA and whether they were not properly paid in violation of the FLSA. If the DOL finds a reasonable belief that a potential violation occurred, an investigation of the employer will be conducted. In the event that the DOL is unable to find a violation, or if they cannot secure the back wages, the employee may then bring a lawsuit in federal court.

Once you have been notified of a wage and hour complaint, your first action should be alerting or securing legal counsel. Wage and hour lawsuits are often conducted collectively, allowing a number of employees to bring a suit together, which makes it easier for employees to bring the suit and can lead to a larger award of back pay overall. If legal counsel is brought in early, counsel can evaluate the employees’ claims and determine if settlement is your best option, particularly if settling will reduce costs and publicity.

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