Wage and Hour Questions

The federal Fair Labor Standards Act, and many state laws, regulate minimum wage and overtime wages.  State and federal laws generally allow for damages of up to double the amount of any underpayment, plus attorney's fees.  These cases often are brought as class actions, the only way to assure a sufficient recovery to make a case worth an attorney's time and money.  (A class action allows a few workers to represent the rights of all.)

Disputes often arise over whether a worker is an employee or an independent contractor.  Unless there's an contract, these questions generally hinge on the extent of the employer's control of the worker.  They thus are very fact specific, and cannot be answered here.

•  Minimum Wage

Generally, employers must pay the federal minimum wage to all non-farm employees.  The current minimum wage is $5.15 per hour (it was 25¢ when the FLSA was passed in 1938, though actual buying power of the minimum wage has fallen since 1968).

The main exceptions are training wages allowed for some new employees, and waiters/waitresses.  The training wage is $4.25 per hour for employees under age 20 during their first 90 days of employment. 

As for waiters/waitresses, they must be paid at least ½ the minimum wage, with the rest made up in tips.  The hourly wage must go up if tips don't bring the waiter/waitress' pay up to minimum wage.  This applies only if the waiter/waitress receives all tips and regularly receives at least $30 in tips per month.  As an example, suppose a waitress gets an average of $40 in tips per eight hours worked ($5/hour average).  The employer would have to pay the $2.13 minimum wage for "tipped" employees.  But if the waitress only averaged $1 per hour in tips, the employer would have to pay $4.15 in wages to bring the waitress up to the $5.15 minimum wage.

•  Overtime

With many exceptions, most non-managerial workers must be paid time and one-half for all hours worked over 40 in a week.  If an employee works 44 hours in a week, he must be paid for 46 (40 hours plus 1½ x 4 hours).

Many disputes arise over when a work day starts, especially for construction workers.  In general, an employer can require workers to report to a job site, not pay them for the drive, and not begin the work day until they arrive at the job site.  However, if the worker has to report to a company office and then go to the job, the employer must pay for the "drive time."