Kenneth B. Schwartz - West Palm Beach Trial and Appellate Attorney - Workers' Compensation - Stop-Work Orders - FlaLaw.com
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Underpaid Wages in Florida
What is the Fair Labor Standard Act (FLSA)?

The FLSA establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in federal, state, and local governments. Covered nonexempt workers are entitled to a minimum wage of not less than $7.25 per hour effective July 24, 2009. Overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek. Many states also have minimum wage laws. In cases where an employee is subject to both state and federal minimum wage laws, the employee is entitled to the higher minimum wage. In 2017 in Florida, the current minimum wage is $8.15 per hour.

Who is Covered by the Fair Labor Standards Act?
 

The FLSA is administered by the Wage and Hour Division (WHD). The Act establishes standards for minimum wages, overtime pay, recordkeeping, and child labor. These standards affect more than 130 million workers, both full‑time and part‑time, in the private and public sectors. The Act applies to enterprises with employees who engage in interstate commerce, produce goods for interstate commerce, or handle, sell, or work on goods or materials that have been moved in or produced for interstate commerce. For most firms, a test of not less than $500,000 in annual dollar volume of business applies (i.e., the Act does not cover enterprises with less than this amount of business). However, the Act does cover the following regardless of their dollar volume of business: hospitals; institutions primarily engaged in the care of the sick, aged, mentally ill, or disabled who reside on the premises; schools for children who are mentally or physically disabled or gifted; preschools, elementary and secondary schools, and institutions of higher education; and federal, state, and local government agencies. Employees of firms that do not meet the $500,000 annual dollar volume test may be covered in any workweek when they are individually engaged in interstate commerce, the production of goods for interstate commerce, or an activity that is closely related and directly essential to the production of such goods. In addition, the Act covers domestic service workers, such as day workers, housekeepers, chauffeurs, cooks, or full‑time babysitters, if they receive at least $1,700 in 2009 in cash wages from one employer in a calendar year, or if they work a total of more than eight hours a week for one or more employers. (This calendar year threshold is adjusted by the Social Security Administration each year.) For additional coverage information, see the Wage and Hour Division Fact Sheet #14: Coverage Under the FLSA. The Act exempts some employees from its overtime pay and minimum wage provisions, and it also exempts certain employees from the overtime pay provisions only. Because the exemptions are narrowly defined, employers should check the exact terms and conditions for each by contacting their local Wage and Hour Division office or a lawyer such as Kenneth B. Schwartz.

Examples of Employees Exempt from both the Minimum Wage and Overtime Pay Requirements:
 

Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools), outside sales employees, and certain skilled computer professionals (as defined in the Department of Labor's regulations)
Employees of certain seasonal amusement or recreational establishments
Employees of certain small newspapers and switchboard operators of small telephone companies
Seamen employed on foreign vessels
Employees engaged in fishing operations
Employees engaged in newspaper delivery
Farm workers employed on small farms (i.e., those that used less than 500 "man‑days" of farm labor in any calendar quarter of the preceding calendar year)
Casual babysitters and persons employed as companions to the elderly or infirm

Employees Exempt from the Overtime Pay Requirements only:
 

Certain commissioned employees of retail or service establishments
Auto, truck, trailer, farm implement, boat, or aircraft salespersons employed by non‑manufacturing establishments primarily engaged in selling these items to ultimate purchasers
Auto, truck, or farm implement parts‑clerks and mechanics employed by non-manufacturing establishments primarily engaged in selling these items to ultimate purchasers
Railroad and air carrier employees, taxi drivers, certain employees of motor carriers, seamen on American vessels, and local delivery employees paid on approved trip rate plans
Announcers, news editors, and chief engineers of certain non‑metropolitan broadcasting stations
Domestic service workers who reside in their employers' residences
Employees of motion picture theaters
Farmworkers

Certain Employees May Be Partially Exempt from the Overtime Pay Requirements, such as ...
 

Employees engaged in certain operations on agricultural commodities and employees of certain bulk petroleum distributors
Employees of hospitals and residential care establishments that have agreements with the employees that they will work 14‑day periods in lieu of 7‑day workweeks (if the employees are paid overtime premium pay within the requirements of the Act for all hours worked over eight in a day or 80 in the 14‑day work period, whichever is the greater number of overtime hours)
Employees who lack a high school diploma, or who have not completed the eighth grade, who spend part of their workweeks in remedial reading or training in other basic skills that are not job-specific. Employers may require such employees to engage in these activities up to 10 hours in a workweek. Employers must pay normal wages for the hours spent in such training but need not pay overtime premium pay for training hours

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What Should an Employer Do If It Is Sued under the FLSA
(or in state court under, say, Ch. 448, Fla. Stat.)?

 

Contact an attorney immediately. Why? Because a knowledgeable attorney can advise the business owner how best to respond to any lawsuit that was filed. The federal court system takes these matters very seriously, the judges require the parties to move through the discovery phase very quickly toward a resolution, and business owners should be mindful that taking a "wait and see" attitude could be a quite costly mistake.

 

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Kenneth B. Schwartz, Esq., represents employers, insurance carriers, and aggrieved individuals in litigation, trials, and appeals of business and employment matters, including wage disputes, contract disputes, enforcement of noncompete and trade secret agreements, allegations of wrongful termination and discrimination, workers' compensation claims, Rule Nisi enforcement proceedings, resolution of stop-work orders and premium disputes, insurance coverage disputes, and construction defect litigation. He also serves as a mediator for other parties embroiled in litigation of such cases who need an experienced and effective "third party neutral" to step in and help both sides reach an amicable resolution of their disputes.

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