#flsa

You're a union shop steward. You're called in to a disciplinary meeting against a union member. The managers lay out a clear case: they have multiple witnesses, documentation of the offense, a clear prohibition against that behavior in the code of conduct the employee signed, and there isn't anything in the union agreement about it. They're smug, thinking they've got the employee dead to rights. And then, when you're given a chance to speak, you gently ask "for my first question, is it the policy of [company] to comply with state and federal law?" And the smug grins fall off their faces and come crashing down to the ground as you begin politely asking them whether they're familiar with the FLSA or the case law you've been carrying around in your steward bag.

The next day, you see one of the managers angrily berating an employee. You don't even have to walk all the way over; simply an arched eyebrow is enough to make them stop.

If you are a working class citizen, you should at least glance over the FLSA (+ any additional laws your particular state may have). Not reading them is like blindly signing a lease agreement. A lot of employers hedge bets on the fact that their employees don't know their rights, and the rights go wayyyy beyond just minimum wage.

For example, most "exempt" employees I know are actually not qualified for exempt status under FLSA. It's about more than being payed a certain amount. You're not allowed to have more than half your duties be laborious if you're "exempt." Depending on the type fo "exempt" (and yes there are several types of exempt employee) you are, you may be disqualified if your boss is a control freak who never lets you make any decisions of significnt procedural or financial importance to the company. There are PAGES of rules outline in the FLSA regarding who is allowed to be exempt. If either of the above scenarios strike a chord with you, this might be worth speaking to a lawyer about.

Also for my hourly cohorts, BREAKS ARE MANDATORY not just lunch but your two tens as well. Especially those ten minute rest periods. If a boss forbids you from taking them, they are stealing your money as the point of a rest period is ten minutes of pay without work. Furthermore, agricultural employees are required to have more breaks.

For my tipped brethren, those tips are yours. ESPECIALLY if your business is taking the Tip Tax Credit. Management is not allowed to touch your tips. Even if management requires you to pool your money to non-tipped employees, always make sure you read the fine print and don't let them tax you out the ass if you're technically not tipped. Don't let greedy assholes take your money.

“McDonald's should not be held responsible for the labor practices of its franchisees, the National Labor Relations Board ruled on Thursday. ...The federal agency, in charge of enforcing U.S. labor law, delivered the latest ruling in a years-long union case that sought to hold the fast food chain liable for the treatment of all workers at both corporate and franchise locations. The agency, also known as NLRB, directed a federal administrative law judge to approve a settlement that had earlier been reached between McDonald's, its franchisees and the workers who had alleged labor-law violations.”

“The government's labor-law prosecutor at the time asked the judge, Lauren Esposito, to review the complaints and consider McDonald's a ‘joint employer’ of franchisees accused of violating labor laws. ...The SEIU and the Fight For $15 on Thursday called the board's ruling on the McDonald's case illegitimate, saying they would ‘forcefully’ appeal ... McDonald's welcomed the NLRB's ruling...”

“Worker advocacy groups have long argued that many companies use contracting and franchising as a shield from responsibility for workers who make their business possible. In multiple lawsuits, unions and groups have pushed for McDonald's to be designated as a ‘joint employer,’ which would also help the efforts to organize workers and bargain for higher wages. McDonald's has fought against the joint-employer designation because it would have ‘a major impact on their business... Separately, the NLRB is expected to undo an Obama-era policy that made companies jointly liable for labor violations by their contractors and franchisees. NLRB proposed the rollback in September 2018, and the agency's spokesman said the final rule is expected in 2020.”

NPR, December 12, 2019: “McDonald's Not Responsible For How Franchisees Treat Workers, U.S. Agency Rules,” by Alina Selyukh

Politico, December 13, 2019: “McDonald's notches NLRB victory,” by Rebecca Rainey 

CNN, December 13, 2019: “Labor Board sides with McDonald's in landmark case,” by  Danielle Wiener-Bronner

NLRB, “McDonald's USA, LLC, a joint employer, et al.” (Docket Activity)

NLRB, “ McDonald's USA, LLC: Amended Board Decision” (39 pages, PDF)

NLRB, December 12, 2019: “Board Approves McDonald's Settlement”

Joint employer

The Labor Department and the National Labor Relations Board were each expected to release, in December, regulations that establish (under the Fair Labor Standards Act and the National Labor Relations Act, respectively) when to classify a business a "joint employer," jointly liable for labor violations committed by its contractors and franchisees. But that deadline may slip into January. DOL's version is being reviewed by the White House budget office.”

Politico Morning Shift: Regulatory Corner, December 20, 2019: “REGULATORY CHECKLIST: Federal labor agencies have several significant employment-related regulations to get out the door in the next 11 days or early in the new year”

Today’s post remembers the Fair Labor Standards Act (FLSA), which was signed into law by President Roosevelt on this day, June 25, in 1938. The law was passed in an attempt to address the working conditions of the men, women, and children that were being paid starvation wages to work brutally long hours, often in unsafe workplaces.

Working collaboration with Secretary of Labor, Frances Perkins, the first woman to serve as a cabinet secretary and one of the principal architect’s of Roosevelt’s New Deal, Roosevelt crafted the FLSA with the goal of ending child labor, establishing a minimum wage, and creating new jobs by limiting employer’s incentive and ability to coerce individual workers into working excessively long hours. Ultimately, the legislation raised wages for over 700,000 workers, reduced the working hours or awarded overtime pay to over 1.5 million workers, and freed 600,000 children under the age of 15 from child labor. The photograph seen here documents sweatshop workers in Baltimore, Maryland in 1921. The photograph was captured by the Women’s Bureau of the U.S. Department of Labor during one of its many studies of American women’s working conditions. Given the date attributed to this image, it is possible that this photograph was taken as part of a study into women’s work hours and the eight-hour work day, which the Bureau conducted that year.

Am I the only one fighting for intern rights here???? LIKKE I know that intern exploitation isn’t the most egregious form of labor exploitation in the world (e.g. slavery, indentured labor, prison labor, abysmal minimum wage)....and it MAY sound like privileged kvetching (maybe it is)....BUT BUT BUT in my country of the U.S. of A. we’ve developed system in both the public and private sector, especially the NONPROFIT sector that benefits off the labor of unpaid interns. and this trend is relatively new (like it picked up in the ‘80s or something). back in the day you’d be hired as a newbie or apprentice and get PAID even if you didn’t have the desired skill set yet. but nowadays UNPAID INTERNS ARE RAMPANT. 

I’ve already quit one internship because they were making me do tasks that a fired paid employee previously carried out.

and now I have an internship where they are requiring me to work overtime FOR FREE. LIKE BITCH, I HAVE ANOTHER JOB I NEED TO DO SO I CAN PAY THE FREAKING RENT.

I want to organize an interns march or rally. This country would shut the fuck down if interns went on strike. the NYT would run an article like, “this rally raises important questions” and then list recent intern lawsuits. Fox News would run several segments about “privileged ivy league assholes bitching and moaning.” Vox would make a video about why interns should be paid according to the Free Labor Standards Act and ethics. NPR would interview a labor rights lawyer. 

Are you unsure about your entitlement to overtime pay as a salaried employee in New York? Both federal and state laws have specific guidelines about overtime, and it’s crucial to understand your rights. Let’s delve into the overtime laws in New York and what it means for you.

Overtime Laws in New York

Under the Fair Labor Standards Act (FLSA) and New York State Labor Law, employees are generally entitled to a minimum wage and overtime pay at a rate of 1½ times their regular pay for all hours worked over 40 in a single workweek. While the FLSA provides the baseline for these rules, New York has its own set of regulations, which can be more favorable to employees.

Salaried Employees and Overtime Pay

It’s a common misconception that salaried employees are automatically exempt from overtime. However, this isn’t always the case. New York law requires that certain salaried employees be paid overtime even if they are considered exempt under federal law. If you’re salaried but earning below the required threshold, you might still be eligible for overtime.

Exemptions from Overtime Laws

Both the FLSA and New York State Labor Law provide exemptions for specific types of employees, typically those in “white collar” roles such as executive, administrative, professional, and outside sales positions. To qualify for these exemptions, employers must meet the “salary basis test,” ensuring the employee earns a minimum amount.

Federal minimum: $684 per week or $35,568 per year.

New York minimum: Varies by location, with higher thresholds in New York City.

Occupations Exempt from Overtime

Some jobs are exempt from both federal and state overtime laws, including:

Government workers

Farm laborers

Certain volunteers and interns

Taxicab drivers

Religious order members

Employees of religious or charitable organizations

Camp counselors

Part-time babysitters

Salary Thresholds for Overtime Exemptions

In New York, the minimum salary thresholds for overtime exemptions vary:

New York City: $1,125 per week or $58,500 per year

Nassau, Suffolk, and Westchester counties: $1,050 per week or $54,600 per year (increasing to $1,125 after December 31, 2021)

Elsewhere in New York: $937.50 per week or $48,750 per year

If your salary falls below these thresholds, you may be entitled to overtime pay, regardless of your exempt status.

Bonus and Incentive Payments

Recent changes by the Department of Labor allow certain bonuses and incentive payments to count towards meeting the salary basis test. However, this is capped at 10% of the required salary threshold. For example, in New York City, only $112.50 of a $2,000 commission can count towards the weekly salary for overtime exemption purposes.

Example Scenario:

If an employee earns $950 per week plus a $2,000 commission, only $112.50 of the commission counts towards the weekly salary. This means the total counted salary is $1,062.50, which is below the $1,125 threshold, making the employee eligible for overtime.

Contact Mansell Law for Assistance

This article is an update to “Understanding the New FLSA Overtime Rule: What Employers Need to Know.” As you know, on April 23, 2024, the Department of Labor (DOL) issued a Final Rule modifying nationwide overtime rules under the Fair Labor Standards Act (FLSA). The Final Rule increased the salary thresholds in the salary level test for highly compensated and white-collar employees. Under the new…