Most issues involving Wage & Hour Law revolves around the Fair Labor Standards Act (FLSA), which governs what an employer can and cannot do when it comes to your time at work and how you are compensated. The FLSA primarily covers issues regarding overtime pay, including how workers are classified in order to qualify for overtime or to be exempt from overtime.

Additionally, there are rules in place that dictate when an employee must be “on the clock” and paid for his or her time. This area of law applies to workers who are asked to perform certain job duties before clocking in or after clocking out. This issue is often referred to as Donning and Doffing because it frequently applies to workers who must change into and out of a uniform or, more commonly, protective gear before entering and when leaving the workplace or job site.

Wage & Hour issues also involve questions of fair and equal pay that are covered by the Equal Pay Act of 1963 and the Lilly Ledbetter Fair Pay Act of 2009.

Fair Labor Standards Act (FLSA)

The Fair Labor Standards Act (FLSA) is a United States federal law established in 1938 that applies to employees engaged in interstate commerce or employed by an enterprise engaged in commerce or the production of goods for commerce. The FLSA established a national minimum wage, guaranteed time and a half for overtime in certain jobs, and prohibited most employment of minors in “oppressive child labor.”

The FLSA was originally enacted in the late 1930s by President Theodore Roosevelt. It guaranteed a federal minimum wage, and that employees who worked more than 40 hours per week would receive overtime. Its goal was to eliminate oppressively long hours, forcing employers to spread out the labor among more people, and fairly compensate those who had to work longer hours.

The FLSA applies to any individual employed by an employer but not to independent contractors or volunteers because they are not considered “employees” under the FLSA.

Equal Pay Act of 1963

A cornerstone of wage and hour litigation is the Equal Pay Act (EPA), which prohibits sex-based wage discrimination between men and women in the same establishment who perform jobs that require substantially equal skill, effort, and responsibility under similar working conditions.

According to the Equal Employment Opportunity Commission (EEOC), “wages can include more than just hourly or annual pay. Wages includes bonuses, company cars, expense accounts, insurance etc.” Additionally, employers cannot lower some employees’ wages in order to make wages equal.

Employers also must pay employees equal wages in the same form. For example, an employer cannot pay a higher hourly wage to a male employee and attempt to make up the difference by paying a female employee a bonus.

When discussing the issue of “equal work,” the EPA does not require that everyone’s job be identical, but only that they are “substantially equal,” according to the EEOC. Evaluating the equality of jobs should take into account actual job duties, not titles, classifications or other terminology. Equality also may be evaluated on the basis of whether both jobs require an equal amount of skill, effort and responsibility.

The EEOC and EPA measure skill by factors such as the experience, ability, education and training required to perform a job. An employee may bring additional skills to a job – for example holding a college degree while his co-worker does not – but if the job does not require this skill for successful performance, the extra skill should not be considered in compensation. In this evaluation, a college degree does not justify a higher salary because it is not needed to perform the job.

Effort is defined simply by the EEOC and EPA as the “amount of physical or mental exertion needed to perform” a particular job.

The EEOC and EPA define responsibility as “the degree of accountability required in performing a job.” The EPA outlines factors to be considered in determining the level of responsibility in a job as:

  • Extent to which employee works without supervision,
  • Extent to which employee exercises supervisory functions, and
  • Impact of employee’s exercise of his or her job functions on the employer’s business.

Lilly Ledbetter Fair Pay Act of 2009

A landmark labor law signed by President Barack Obama on Jan. 29, 2009, is named after an Alabama woman. The Lilly Ledbetter Fair Pay Act of 2009 was the first piece of legislation of Obama’s Administration. This law overturned the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007), which severely restricted the time period for filing complaints of employment discrimination concerning compensation.

Ledbetter had worked for Goodyear Tire & Rubber Co. in Gadsden, Alabama, for nearly 20 years when she discovered she was being paid less than her male colleagues in the same job, for the same work. She filed a complaint with the EEOC in 1998 and was initially awarded more than $3 million in back pay and punitive damages by a jury. The amount was later reduced to $300,000 by the judge, and then appealed to the Supreme Court.

In 2007, the Supreme Court ruled 5-4 to overturn the verdict, saying Ledbetter was required to file suit within 180 days of the initial act of discrimination, even though she had not found out about the pay discrepancy until it had been going on for years. Ledbetter began a campaign to change the law, taking her fight to the U.S. Senate and spearheading the legislation that now bears her name.

As a result of the Lilly Ledbetter Fair Pay Act, each unfair paycheck is considered an act of discrimination. As a result, each paycheck since the original occurrence of discrimination will be ruled a new unlawful employment practice that resets the statute of limitations. The bill restricts back pay awards to two years.

The EEOC notes that people challenging a wide variety of practices that resulted in discriminatory compensation can benefit from the Lilly Ledbetter Act. These practices may include employer decisions about base pay or wages, job classifications, career ladder or other noncompetitive promotion denials, tenure denials, and failure to respond to requests for raises.


Overtime pay is one of the most abused areas of law as a result of employers misclassifying employees to avoid paying overtime. There are specific criteria that must be met in order for an employee to be exempt from receiving overtime. All states are subject to federal laws governing overtime pay.

Fair Labor Standards Act (FLSA) laws require overtime compensation be paid (at time and one-half) for all “hours worked” over a prescribed “threshold” (typically 40 hours per week), for “nonexempt” employees.

On August 23, 2004, controversial changes to the FLSA’s overtime regulations went into effect, making substantial modifications to the definition of an “exempt” employee. Low level working supervisors all throughout American industry were reclassified as “executives” and lost overtime rights. Attempts in Congress to overturn the new regulations were unsuccessful.

Several exemptions exist that relieve an employer from having to meet the statutory minimum wage, overtime, and record-keeping requirements. The largest exception applies to executive exemptions applicable to professional, administrative and executive employees. Exemptions are narrowly construed; an employer must prove that the employees fit plainly and unmistakably within the exemptions terms.

The executive exemption under the FLSA allows companies to pay store managers a set salary and avoid paying them overtime in the event a store manager works more than 40 hours. However, the exemption also mandates that managers must actually do management duties as their “primary duty” as opposed to “manual labor.”

Likewise, an employer cannot simply exempt workers from the FLSA by calling them independent contractors. The FLSA does not apply to independent contractors or volunteers because they are not considered “employees” under the FLSA. Many employers have illegally misclassified their workers as independent contractors in order to avoid paying overtime.

FLSA lawsuits typically seek recovery for unpaid or underpaid back wages, plus double damages (called “liquidated damages”) and attorneys’ fees. These FLSA cases are typically filed as “collective actions” on behalf of a group of employees.

In addition to the FLSA, many states have their own causes of action that mirror the protections provided under the federal scheme – in some instances the states offer greater protections.

Donning and Doffing

Another active area of the FLSA in which we are litigating involves what is known as “donning and doffing.” These cases involve industries where employees are required to put on and take off protective clothing as a prerequisite for doing their job. Many companies do not pay employees for the time spent donning the protective gear and/or doffing the protective gear at the beginning and ending of a shift, or during break periods throughout the workday.

Most of the time the protective clothing is not only required, it is often an essential part of the production process that guarantees the quality of the product. Industries where we typically see donning and doffing cases include:

  • chicken processing facilities;
  • beef packing facilities;
  • other agricultural industries.

We have also seen litigation in industries where the protective clothing is essentially safety gear for hazardous activities.

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