Balance Between Employer and Employee under the Fair Labor Standards Act? Hardly.

I read an article recently that said that with the economic recovery and stepped up enforcement of labor laws, there is now a greater balance between employers and their employees, as the employees were reluctant to sue employers during the recession, thereby giving employers the upper hand. In that same article, though, it was stated that wage and hour claims brought under the federal Fair Labor Standards Act (FLSA) are up by 400 percent over the past decade. As we’ve fought several employment disputes filed by construction workers who lost their employment during that time, it is a reach to say any balance exists under the FLSA.

The law is relatively simple and straightforward, but the application of it may require greater analysis as the many regulations dealing with who is covered are vague and complex. In essence, if your organization is a qualified business enterprise covered by the FLSA (and just about all of our clients are), then your employees who are not exempt from the FLSA must be paid for all the time spent working at their regular hourly rate, and for all time that exceeds 40 hours in a week, they must get paid time and a half, or 1.5 times their hourly rate. The factors to consider in figuring out whether your employees are exempt or not are too voluminous to state in this article, as are the factors in determining what constitutes compensable time/overtime. We’d strongly encourage our readers to contact us if they have any questions whether employees are covered, and here’s why: the penalties for violating the FLSA are harsh, and litigating claims under the FLSA are most often a no-win situation for employers.

First, aside from having to pay all amounts proven to be due for either unpaid regular wages and/or overtime, the FLSA carries with it a penalty that automatically doubles that amount. Second, only the plaintiff is entitled to reimbursement of attorneys’ fees. Third, and most significantly, a disgruntled employee pursuing a wage and hour claim meets his/her burden of proof by simply raising his right hand and swearing that the testimony is truthful, and then testifying as to how much time was worked but not compensated. That’s it! The FLSA then places the burden on employers to disprove the employees’ claims through introduction of employment records, the accuracy and veracity of which are highly scrutinized (the FLSA also has very strict recordkeeping requirements for employers). Considering the cost of trying to disprove the claim, the ease of which an employee satisfies its burden, and the exposure to pay liquidated damages and attorneys’ fees to the other side, the employer is in an unenviable situation.

For more information on the requirements of and guidelines under the FLSA, visit the government’s department of labor website at And always remember, if you need legal advice, don’t think twice, call Benson, Mucci & Weiss.