Blog Post: Why The FLSA Is Fun! (Alternate Title: Why "Supervisor Liability" Should Leave You Caring a Bit About the FLSA.)

You read that correctly, there can be individual liability under the FLSA for supervisors. Your reaction to that is, I hope: "Wow! I sure do wish I knew more about the FLSA!" Even if your reaction contains fewer exclamation points (and few people become as excited about the FLSA as do lawyers), I encourage you to take a minute to identify a few pitfalls to avoid. Here are 5 things you may, or may not, know about the FLSA.

First, a quick summary of the FLSA. The FLSA is the Federal statute that regulates overtime and minimum wage. It does not require breaks, and may be overruled by more generous State rules that require higher minimum wage. If an employee is "exempt" then they are not entitled to overtime and minimum wage. If an employee is "non-exempt" then they must be paid overtime and minimum wage. Most of the trouble with the FLSA lies in employer's decision not to pay "non-exempt" employees for all hours worked, and in misclassifying employees as "exempt" who are really "non-exempt."

Fun times. Now, here are a few pitfalls for the unwary.

5. Work Required Trainings. They must be paid. If an employer requires a non-exempt employee to attend training during off hours, they must include those hours in the employee's total "hours worked" for that 7 day work week period. If the employee attends a training to further their personal goals (i.e. to receive a promotion or further a lifelong dream of becoming a pastry chef) then the employer need not pay.

4. Salaries Mean Little. So often I hear "Oh, I do not need to pay overtime to that employee, they are paid on salary." Unless your employee falls under one of the specific exemptions in the FLSA, you must pay overtime. Even if your employee says that they don't care. Even if you pay them a guaranteed amount each week. Some folks seem to think that there is some style, panache or glory in being paid a salary, and they bristle at their employer's request that they punch a clock. In truth, being exempt contains little glory (and is entirely outside of the employer's discretion). If you are exempt, your employer can work you 24 hours a day, 7 days a week, and never pay you a penny more than your salary. Not too glamorous. This analysis may be oversimplified, but if it successfully eliminates "salaried" and "hourly" from the collective vocabulary and replaces it with the statutorily-loaded (if somewhat cumbersome) terms "exempt" and "non-exempt," then one of my life goals will be satisfied.

3. Comp Time. It doesn't exist except in a few, very narrow situations. If your employee works 45 hours in one 7-day work week and 10 hours the next, you still must pay overtime on the 5 hours, even if the pay period encompasses both weeks.

2. "To Suffer Or Permit To Work." You may need to pay non-exempt employees if they work "off the clock," even if you did not ask them to work. They must also be paid if they work on breaks, over lunch, or in contravention of a policy that prohibits them from working overtime without pre-approval. You may discipline them, but you still must pay.

1. Deductions. If an employee leaves with a laptop, fails to repay an advance or otherwise departs with a debt, you may not reduce their final paycheck below minimum wage or in a way that eliminates the overtime bump. If you anticipate reducing employee wages when they leave, please work with your attorney to draft a written agreement giving you permission to do so and, even then, seek advice before reducing wages below minimum wage.

Bonus Tidbit: Job descriptions are your best friend when explaining your interpretation of status (i.e. exempt vs. non-exempt) to the Department of Labor (DOL). If you take the time to look at what your employees do, document it and share the descriptions with the employees, you are in a much better place to avoid a "willful" violation finding by the DOL. Relying on a legal opinion coupled with a thoughtful factual analysis is an ounce of prevention that can save you money, time and aggravation in the long run.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.