The Fair Labor Standards Act (FLSA)

The Fair Labor Standards Act (FLSA) is a federal statue that requires employers to pay employees for “all of the time which the employer requires or permits employees to work.” 29 U.S.C. § 203. FLSA also requires employers to: pay minimum wage, pay overtime, maintain records for wages, and prevent child labor.

Is my Employer Required to Comply with FLSA?

FLSA applies to two kinds of employers:
The first are enterprises with at least $500,000 in sales annually that include schools, hospitals, medical or nursing care businesses, and government agencies.
FLSA also applies to any worker who is engaged in some way with interstate commerce, this includes a wide variety of workers. The California Fair Labor Standards Act applies to most other workers who are not covered under the federal FLSA.


An employer, under FLSA, must pay employees at a rate that is at least one and a half times their regular pay rate for any hours worked over 40 in a work week of 168 hours. The work week can start at any day and any hour but must be fixed and regularly reoccurring.


Not all employees are entitled to overtime pay under FLSA. Five types of employees are not eligible for overtime pay: executive, administrative, professional, computer and outside sales employees, and highly compensated employees. However, the determination as to whether an employee can be properly classified as exempt from overtime law is a legal decision that courts make.  This means that you can still be eligible for overtime even if you are paid on a flat rate, flag rate, salary, or commission basis.

Common Problems

Employers often run into problems with FLSA because of the differences between states. For example, some states allow employees with unusual work weeks have their overtime pay calculated by the fluctuating work week method. This is done by paying the employee a fixed salary for all hours worked regardless of whether the employee clocks in more or less than 40 in a week. The employer then pays the employee a bonus for each week the employee clocks in more than 40 hours at a 50% bonus to the base salary for each of the extra hours worked. California overtime law does not allow employer to use this method.
Employers commonly fail to provide overtime for many classes of position, including: mechanicshealth care professionalsplumbers, exotic dancers, bill collectors, and loan officers.

How to Collect Unpaid Overtime

Employers can owe a single employee thousands of dollars in unpaid wages when they fail to properly pay them. Employees can hire an attorney to bring the lawsuit for the unpaid wages on their behalf. If liable for unpaid wages or unpaid overtime employers also may have to pay the employee:

  • Wages due for two years prior to the date the employee filed the lawsuit. This jumps to three years prior if the violation was willful.
  • Liquidated damages: double for the amount of wages due unless the employer can show the failure to pay was done in good faith and had a reasonable belief that the failure was not a legal violation.
  • All reasonable attorneys fees and costs incurred in filing the lawsuit

If you suspect that your employer has not paid you what you are entitled to contact the experienced attorneys of the Law Offices of Michael S. Cunningham today. Call (951) 213-4786 to schedule a free consultation.