Content adapted from Your Rights in the Workplace, by Barbara Kate Repa (1998, Nolo Press).

These days, most of us spend at least half of our waking hours working. Ideally, this time will be spent on jobs that are fulfilling. But whether or not we enjoy our work, the bottom line for almost all of us is to be paid fairly and on time. Fortunately, both state and federal laws protect this right.

Q
My paystub and my own records of the hours worked and the pay to which I'm entitled are quite different. What should I do?

A
Many employers either become confused by the nuances and exceptions in the wage and hour law (the Fair Labor Standards Act) or they bend the rules to suit their own pocketbooks. Whatever the cause, you would do well to doublecheck your employer's math. A few simple rules distilled from the law may help.

Hourly. Hourly employees must be paid at least the minimum wage for all hours worked. Your employer cannot take an average or pay you less than minimum wage for some hours worked and more for others.

Fixed rate or salary. Employees paid at a fixed rate can check their wages by dividing the amount they are paid in a pay period by the number of hours worked. The resulting average must be at least the minimum wage.

Commissions and piece rates. Your total pay divided by the number of hours you worked must average at least the minimum hourly wage rate.

Q
I put in more than forty hours on the job each week, without overtime pay. Am I entitled to time off to compensate for this?

A
Most workers are familiar with compensatory or comp time--the practice of offering employees time off from work in place of cash payments for overtime. What comes as a shock to many is that the practice is illegal in most situations. Under the FLSA, only state or government agencies may legally allow their employees time off in place of wages (29 U.S.C. ß207(o)).

Even then, comp time may be awarded only:

- according to the terms of an agreement arranged by union representatives, or

- if the employer and employee agree to the arrangement before work begins.

Some states do allow private employers to give employees comp time instead of cash. But there are complex, often conflicting laws controlling how and when it may be given. A common control, for example, is that employees must voluntarily request in writing that comp time be given instead of overtime pay-before the extra hours are worked. Check with your state's labor department for special laws on comp time in your area.

Many employers and employees routinely violate the rules governing the use of compensatory time in place of cash overtime wages. However, such violations are risky. Employees can find themselves unable to collect money due them if a company goes out of business or they are fired. And employers can end up owing large amounts of overtime pay to employees as the result of a labor department prosecution of compensatory time violations.

Q
I work as a waitress and make good tips. But my boss says that because I get this extra money at work, I can be paid lower than the hourly minimum wage. Is this true?

A
It depends on how much money you make in tips. Employers must pay all employees covered by the federal wage law (FLSA) not less than the minimum wage--currently $5.15 an hour. And some states have established a minimum wage that is higher than the federal one; if you live in one of these states, you are entitled to the higher rate.

But the matter of minimum wage becomes trickier when an employee routinely receives at least $30 per month in tips. Employers are allowed to credit half of those tips against the minimum wage requirement-that is, they can credit up to $2.12 an hour of the tips received toward their wage obligation and actually pay you only $2.13 an hour. However, the employer's offset must not exceed the tips the employee actually receives.

Q
I am required to carry a beeper 24 hours a day, every day of the week for my job. I am occasionally called on my vacation, holidays and other days off. Am I entitled to be paid anything for on-call time?

A
Vacation days, holidays and other paid days off work should be just that--days off work--and you are entitled to enjoy them free from the reigns of your beeper. When your employer requires you to be on-call but does not require you to stay on the company's premises, the following two rules generally apply.

- On-call time that you control and use for your own enjoyment or benefit is not counted as payable time.
- On-call time over which you have little or no control and which you cannot use for your own enjoyment or benefit is payable time.

Disputes usually boil down to the slipperiness in the definition of control and use of time. If the occasional beep beckons you only to call in to give advice, but you are otherwise free to spend your time any way you want, your employer need only pay for the time you spend answering the beeper. However, if your employer insists that you be available to return to work on demand and puts constraints on your behavior between beeper calls--you cannot consume alcohol, or you must stay within a certain radius of work, for example--you may be entitled to compensation for your on-call time.

Q
What laws ensure my right to take vacations?

A
Here's a surprising legal truth that most workers would rather not learn: no law requires employers to pay you for time off, such as vacation or holidays. This means that if you receive a paid vacation, it's because of custom, not law.

And just as vacation benefits are discretionary with each employer, so is the policy of how and when they accrue. For example, it is perfectly legal for an employer to require a certain length of employment--six months or a year are common--before an employee is entitled to any vacation time. It is also legal for employers to prorate vacations for part-time employees, or to deny them the benefit completely. Employers are also free to set limits on how much paid time off employees may store up before it must be lost or taken.

If your employer does have a policy of offering employees paid time off, however, it cannot discriminate in offering it; all employees must be subject to the same rules.

End FAQ

The FLSA

The French writer Voltaire once pointed out that work spares us from three great evils: boredom, vice and need. Most of us can tolerate a little boredom, and some may even enjoy a small helping of vice. But need is something we would all rather avoid. Although most people like their jobs to be fun and fulfilling, what they likely want most is to be paid--fairly and on time--so that they can enjoy the other aspects of their lives.

The Fair Labor Standards Act

The most important and most far-reaching law guaranteeing a worker's right to be paid fairly is the federal Fair Labor Standards Act or FLSA (29 U.S.C. ßß201 and following). The FLSA:

- defines the 40-hour workweek
- covers the federal minimum wage
- sets requirements for overtime, and
- places restrictions on child labor.

The FLSA was passed in 1938 after the Depression, when many employers took advantage of the tight labor market to subject workers to horrible conditions and impossible hours. One of the most complex laws of the workplace, the FLSA has been amended many times. It is full of exceptions and exemptions--some of which seem to contradict one another. Most of the revisions and interpretations have expanded the law's coverage, for example:

- requiring that male and female workers receive equal pay for work that requires equal skill, effort and responsibility

- including in its protections state and local hospitals and educational institutions

- covering most federal employees and employees of states, political subdivisions and interstate agencies, and

- setting out strict standards for determining, paying and accruing compensatory or comp time--time given off work instead of cash payments.

The FLSA applies only to employers whose annual sales total $500,000 or more, or who are engaged in interstate commerce. You might think that this would restrict the FLSA to covering only employees in large companies, but in reality the law covers nearly all workplaces. This is because the courts have interpreted the term interstate commerce very broadly. For example, courts have ruled that companies that regularly use the U.S. mail to send or receive letters to and from other states are engaged in interstate commerce. Even the fact that employees use company telephones to place or accept interstate business calls has placed an employer under the FLSA.

Who Is Exempt

A few employers, including small farms--those that use relatively little outside paid labor--are explicitly exempt from the FLSA. In addition, some employees are exempt from the FLSA even though their employers are covered.

A few common categories of employees are exempt from FLSA requirements, such as pay for overtime.

Executive, administrative and professional workers. To qualify as an exempt executive, the employee must:

- be paid with a salary, so that compensation is not subject to reductions for quality and quantity of work

- use discretion in performing job duties

- regularly direct the work of two or more people

- have the authority to hire and fire other employees, or to order such hiring and firing

- be primarily responsible for managing others, and

- devote no more than 20% of worktime to other tasks that are not managerial. For certain retail and service companies, 40% of nonmanagerial time is allowed.

Other employees who are exempt from the FLSA include:

- Amusement park and camp workers, including those employed by religious or nonprofit educational centers.

- Fishing specialists, who catch, harvest or farm fish and shellfish.

- Farm workers, most of whom, however, are covered by other federal and state laws.

- Newspeople, who work to produce a local newspaper with a circulation of less than 4,000.

- Switchboard operators, who work for small, independently owned companies.

- Employees who work out of the country, except for workers in Puerto Rico, the U.S. Virgin Islands, American Samoa, Guam, Wake Island, Eniwetok Atoll, Kwajalein Atoll, Johnston Island and the Outer Continental Shelf lands, who are specifically covered by the FLSA.

- Special situations. People with severe physical handicaps employed in special workshops, volunteers in nonprofit organizations, mental patients or patient-workers at rehabilitation facilities and prison laborers are also exempt from the FLSA. The employer should have documentation of the Department of Labor's permission to employ people under special FLSA exemptions.

- Personal companions and casual baby sitters. Officially, domestic workers--housekeepers, childcare workers, chauffeurs, gardeners--are covered by the FLSA if they are paid at least $50 per calendar quarter, or if they work eight hours or more in a week for one or several employers. For example, if you are a teenager who babysits only an evening or two each month for the neighbors, you probably cannot claim coverage under the FLSA; a fulltime au pair would be covered.

The FLSA was passed to clamp down on employers who cheated workers of their fair wages. As a result, employee status is broadly interpreted so that as many workers as possible come within the protections of the law.

If nearly all of your income comes from one company, a court would probably rule that you are an employee of that company for purposes of the FLSA, regardless of whether other details of your worklife would appear to make you an independent contractor.

In recent cases determining close questions of employment status, a growing number of courts are finding workers to be employees rather than independent contractors. Key realities cited by the courts: the relationship appeared to be permanent, the workers lacked bargaining power with regard to the terms of their employment (Martin v. Albrecht, 802 F. Supp. 1311 (1992)) and the individual workers were economically dependent upon the business to which they gave service (Martin v. Selker Bros., Inc., 949 F. 2d 1286 (1991)).

But workers' skill and pay levels can push courts to the opposite conclusion. Some courts are more likely to class workers with higher skills and higher pay as independent contractors rather than employees. In two recent cases hailing from Texas, for example, two groups of workers--pipe welders and topless dancers--who were classified as independent contractors claimed they were really employees under the labor laws and so should be entitled to overtime pay. The courts, apparently reasoning that welding pipes takes more skill than dancing topless, held that the welders were independent contractors, but the dancers were employees. (Carrell v. Sunland Constr., Inc., 998 F.2d 330 (5th Cir. 1993); Reich v. Circle C. Investments, Inc., 998 F.2d 324 (5th Cir. 1993).)

More Information About Wages, Hours and Time Off

- You can check into your employer's wage and payment policies by calling the local U.S. Labor Department, Wage and Hour Division office, listed in the federal government section of your telephone directory.

- Most of the exemptions to FLSA coverage are listed in federal statute, 29 U.S.C. ß213. The most direct way to become familiar with these exemptions is to read about them in an annotated edition of the U.S. Code, which is what your local law library (or even a large public library) is most likely to have.

- The United States Department of Labor, 200 Constitution Avenue, NW, Washington, DC 20210, (202) 219-7316, offers pamphlets describing federal wage and hours laws and the Family Medical Leave Act.