430 lines
18 KiB
Plaintext
430 lines
18 KiB
Plaintext
/* Here is the full text of the U.S. Department of Labor's
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publication regarding Employer's and the Minimum Wage Law */
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Employer's Guide to Compliance with Federal Wage-Hour Laws
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Note:
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This publication provides general information about the laws
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administered and enforced by the Wage and Hour Division. It does
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not attempt to answer all legal questions which may arise under
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these laws. It should not be considered in the same light as
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official statements of position contained in regulations or
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interpretative bulletins published in the Federal Register and
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the Code of Federal Regulations, or in the official opinion
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letters of the Wage and Hour Administrator. Copies of these
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publications may be obtained free from the Division's nearest
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office.
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Why has a Wage and Hour Representative visited me?
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The Wage and Hour Division of the U.S. Department of Labor
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administers a number of Federal laws which set basic labor
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standards. The Division's representative, called a compliance
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officer, will make an investigation to determine whether these
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laws apply to your business. If your business is subject to
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these laws, the compliance officer will verify that your workers
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are paid according to the law and that youths under 18 are
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employed as provided by law. The Division does not require a
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compliance officer to previously announce the scheduling of an
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investigation. Although in many instances the compliance officer
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does advise employers prior to opening the investigation, he/she
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cannot always do so. The compliance officer must have sufficient
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latitude to initiate unannounced investigations in many cases in
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order to observe normal business operations and expedite
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development of the facts. However, you have the right to request
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that the investigation be delayed briefly if you are unable to
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meet with the compliance officer due to prior commitments.
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/* This is very important. You DO NOT have to drop everything and
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proceed with an investigation. In fact, it's probably better
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that you don't do so. Of course, you may have counsel present. */
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Why was my business selected for an investigation?
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Wage and Hour conducts investigations for a number of reasons.
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Many are initiated by complaints. All complaints are
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confidential; the name of the worker and the nature of the
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complaint are not disclosable.
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In addition to complaints, the Division selects certain types of
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businesses or industries for investigations. Occasionally, a
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number of businesses in a specific geographic area will be
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examined. In either situation, the objective is to improve
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compliance with the law in those businesses, industries, or
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localities. Regardless of the reason for the investigation, all
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investigations are conducted in accordance with established
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policies and procedures.
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What are my rights as an employer?
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As an employer you have the right to:
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* Look at the compliance officer's credentials and, if there
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is any question, verify his/her identity by calling the Wage
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and Hour area director for your locality.
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* Receive a full explanation of the investigative process.
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o Ask any questions concerning the application of the law and
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receive copies of Wage and Hour's publications.
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o Receive an explanation of any violations or back wages found
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due.
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o Meet with the compliance officer's supervisor should you
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fail to resolve any compliance problems with the compliance
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officer.
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o Present additional information for consideration if
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violations are disclosed.
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o Request the presence of your attorney, accountant, or other
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advisors at any time during the investigative process.
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/* USE THIS RIGHT! Don't waive it.*/
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o Pursue your case in the courts.
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What are the laws and how do they apply?
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Coverage under the Fair Labor Standards Act (FLSA) is very broad.
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The FLSA applies to all employees of certain enterprises having
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workers engaged in interstate commerce, producing goods for
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interstate commerce, or handling, selling, or otherwise working
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on goods or materials that have been moved in or produced for
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such commerce by any person. A covered enterprise consists of
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the related activities performed through unified operation or
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common control by any person or persons for a common business
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purpose, and which is:
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o Engaged in laundering or cleaning or repairing of clothing
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or fabrics.
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o Engaged in the business of construction or reconstruction.
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o Engaged in the operation of a hospital; an institution
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primarily engaged in the care of the sick, the aged, the
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mentally ill or defective who reside on the premises; a
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school for mentally or physically handicapped or gifted
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children; a preschool; an elementary or secondary school; or
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an institution of higher education (regardless of whether or
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not such hospital, institution or school is public or
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private or operated for profit or not for profit).
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o Comprised exclusively of one or more retail or service
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establishments (as defined in the Act) whose annual gross
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volume of sales or business done is at least:
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Beginning July 1, 1978 - $275,000
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Beginning July 1, 1980 - $325,000
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Beginning January 1, 1982 - $362,500
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(any retail or service enterprise which had an annual gross
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volume of not less than $250,000 on June 30, 1978 and which
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later ceases to be a covered enterprise as a result of
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increases in this dollar volume test must continue to pay
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its employees at least the minimum wage in effect at the
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time of the enterprise's removal from the coverage, as well
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as overtime in accordance with the Act).
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o Any other type of enterprise having an annual gross volume
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of sales or business done of at least $250,000.
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The dollar volume standard mentioned in (4) and (5) excludes
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excise taxes at the retail level which are separately stated.
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Employees who are not employed in a covered enterprise may still
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be entitled to the Act's minimum wage, overtime pay, and child
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labor protections if they are individually engaged in interstate
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commerce or in the production of goods for interstate commerce.
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These include:
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o Communication and transportation workers.
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o Employees who handle, ship, or receive goods moving in
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interstate commerce.
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o Clerical or other workers who regularly use the mails,
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telephone, or telegraph for interstate communication, or who
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keep records on interstate transactions.
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o Employees who regularly cross state lines in the course of
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their work.
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o Employees of independent employers who perform clerical,
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custodial, maintenance, or other work for firms engaged in
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commerce or in the production of goods for commerce.
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o Employees who produce, manufacture, or otherwise work on
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goods for commerce, or in processes or occupations closely
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related and directly essential to the production of goods
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for commerce.
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If your business is covered by the FLSA, there are certain
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standards you must follow:
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Minimum Wage: Presently $3.35 an hour for all covered employees.
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/* This went up in stages to $ 4.65 */
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Overtime: Nonexempt workers must be paid one and one-half times
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their regular rates of pay for all hours worked over 40 in a
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workweek. Some employees are excluded from the minimum wage or
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overtime provisions, or both, by specific exemptions. Because
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each exemption is narrowly defined under the law, an employer
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should carefully check its exact terms and conditions before
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applying it.
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Recordkeeping: Business owners are required to keep payroll
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records and records of hours worked for their covered employees.
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The Act requires no particular form for the records. All it
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requires is that the records include certain identifying
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information about your employees, the hours they work and the
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wages earned. The law requires this information to be accurate.
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Following is a breakdown of the basic information that an
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employer must record.
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Identifying Information
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o Employee's full name and social security number.
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o Address, including zip code.
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o Birth date, if younger than 19 years old.
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o Sex.
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o Occupation in which employed.
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Hours
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o Time of day and day of week when employee's workweek begins.
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o Total hours worked each day.
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o Total hours worked each workweek.
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Wages
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o Basis on which employee's wages are paid (e.g., "$4 an
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hour," "$160 a week" "piecework").
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o Regular hourly pay rate for any week when overtime is
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worked.
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o Amount and nature of each payment excluded from the "regular
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rate".
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o Total daily or weekly straight-time earnings.
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o Total overtime earnings for the workweek.
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o All additions to or deductions from the employee's wages for
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each pay period.
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o Total wages paid each pay period.
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o Date of payment and the pay period covered by the payment.
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Most of the information required by the Act is of the kind that
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any company would keep in following ordinary business practices.
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Records with somewhat different information are required for
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workers with unusual pay arrangements. This would include
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domestics, homeworkers, certain hospital and nursing home
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employees, tipped employees, employees whose pay includes board,
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lodging, or other facilities, and employees who are exempt from
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the Act's minimum wage and overtime pay requirements.
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Child Labor: Restrictions on the employment of minors in nonfarm
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occupations vary according to their age and the nature of the
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work to be performed. The minimum age when employing minors in
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nonfarm jobs is 14. Minors who are 14 and 15 years old may work
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outside of school hours in various nonmanufacturing, nonmining,
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nonhazardous jobs, under these conditions.
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o No more than 3 hours on a school day, and 18 hours in a
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school week.
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o No more than 8 hours on a nonschool day, and 40 hours in a
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nonschool week.
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o No earlier than 7 a.m. and no later than 7 p.m. except from
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June 1 through Labor Day, when evening hours are extended to
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9 p.m.
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Minors who are 16 and 17 years of age may work unlimited hours
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and in any occupation other than those which have been determined
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to be hazardous. These are no restrictions for minors 18 years
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or older. At any age, youths may work for parents in their
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solely owned nonfarm business (except in manufacturing or on
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hazardous jobs).
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Note
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Not all businesses are covered by the FLSA, and some employees of
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those that are covered may be exempt from the minimum wage and/or
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overtime provisions. The compliance officer will tell you how
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the law applies to your business.
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Government Contracts
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If you have a contract or subcontract to provide goods or
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services to the Federal government or to perform on federally
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financed or assisted construction projects, there are several
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other labor standards laws which may apply.
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Walsh-Healey Public Contracts Act: Sets basic labor standards
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for workers performing on contracts in excess of $10,000 for the
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manufacture or furnishing of goods to the Federal government.
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Covered employees must receive the FLSA minimum wage and overtime
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compensation of one and one-half times the regular or basic rate
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of pay for hours worked after 8 in a day or 40 in a week,
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whichever is greater. The Act also prohibits the employment of
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minors under 16 years of age on contract work.
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Service Contract Act: Requires that service employees performing
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on contracts in excess of $2,500 for the furnishing of services
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to the Federal government (as well as any subcontract thereunder)
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be paid not less than locally prevailing wage rates and fringe
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benefits, as determined by the Department of Labor, or, in
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certain cases, the wages and fringe benefits (including
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prospective increases) provided for in a predecessor contractor's
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collective bargaining agreement. No employee of an employer
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performing on a government service contract may be paid less than
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the FLSA minimum wage.
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Davis-Bacon and Related Acts: Require payment of locally
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prevailing wage rates and fringe benefits to employees of
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contractors or subcontractors performing work on federally
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financed or assisted construction projects in excess of $2,000.
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Contract Work Hours and Safety Standards Act: Requires payment
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of overtime compensation at one and one-half times the regular or
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basic rate of pay after 8 hours a day or 40 hours a week to
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laborers and mechanics working on most federally funded or
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assisted construction contracts in excess of $2,000, on Federal
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service contracts in excess of $2,500, and on Federal supply
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contracts in amounts between $2,500 and $10,000.
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If you have a government contract, the compliance officer will
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determine your compliance with these laws.
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Wage Garnishment: The Wage and Hour Division also administers
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the wage garnishment provisions of the Consumer Credit Protection
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Act. This law limits the amount of an individual's income that
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may be legally garnisheed, or withheld to pay a debt. It also
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prohibits firing an employee whose pay is garnished because of
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only one debt.
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/* The rights and obligations regarding wage garnishment are
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discussed in another tutorial.*/
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What are the procedures followed in an investigation?
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Section 11(a) of the FLSA authorizes representatives of the
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Department of Labor to investigate and gather data concerning
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wages, hours, and other employment practices; enter and inspect
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an employer's premises and records; and question employees to
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determine whether any person has violated any provision of the
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Act.
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An investigation is conducted by a compliance officer of the Wage
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and Hour Division who will identify him- or herself and show you
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official credentials. The compliance officer will explain the
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investigation process to you. If you have any questions as to
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the identity of the individual, you should ask for the name of
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the person's supervisor and his/her telephone number so that you
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may verify the compliance officer's identity.
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An investigation consists of the following steps:
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o Examination of records to determine what laws or exemptions
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apply. These records include, for example, those showing
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your annual dollar volume of business, your involvement in
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interstate commerce, and your work on government contracts.
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Information from your records will not be revealed to
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unauthorized persons.
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o Examination of payroll and time records and taking notes or
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making transcriptions or photocopies essential to the
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investigation.
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o Interviews with certain employees in private. The purpose
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of these interviews is to verify your payroll and time
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records, to identify workers' duties in sufficient detail to
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decide what exemptions apply, if any, and to determine if
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minors are legally employed. Interviews are normally
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conducted on the employer's premises, but other arrangements
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may be made at the employer's request. In some instances,
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present and former employees may be interviewed at their
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homes or by a mail interview form.
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o When all the factfinding steps have been completed, the
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compliance officer will ask to meet with you and/or your
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representative. You will be told whether violations have
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occurred and, if so, what they are and how to correct them.
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If you owe back wages to employees because of minimum wage
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or overtime violations, the compliance officer will ask you
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to restore the under payments, and may ask you to compute
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the amounts due.
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Should you wish to be represented by your accountant or attorney
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at any point during this process, it is your right to do so.
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When the compliance officer has advised you of his/her findings,
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you and/or your representative may wish to present additional
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facts for consideration if violations were disclosed. At this
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point, any questions you have will be answered to the best of the
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compliance officer's ability. In some cases, the compliance
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officer may have to do research to provide the correct answers.
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Should you reach an impasse in the resolution of the compliance
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problems with the compliance officer, you may ask to meet with
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the area director who supervises the Wage and Hour operations in
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your area.
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What enforcement procedures are provided by law?
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While every effort is made to resolve the issue of compliance and
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payment of back wages at an administrative level, the laws also
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provide for enforcement procedures. You should be aware that the
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FLSA provides for the following:
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o A employee may file suit to recover back wages and an equal
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amount in damages, plus attorney's fees and court costs.
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o The Secretary of Labor may file suit on behalf of your
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employees for back wages and an equal amount in damages.
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o The Secretary may obtain a court injunction to restrain any
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person from violating the law, including unlawfully
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withholding proper minimum wage and overtime pay.
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o Employers who have willfully violated the law may face
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criminal penalties, including fines and imprisonment.
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o Employees who have filed complaints or provided information
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during an investigation may not be discriminated against or
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discharged for having done so. If they are, they may file a
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suit or the Secretary of Labor may file a suit on their
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behalf for relief, including reinstatement to their jobs and
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payment of wages lost plus monetary damages.
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In the case of the government contracts statutes, contract funds
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may be withheld for violations under the Walsh-Healey Public
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Contracts Act, Service Contract Act, Davis-Bacon and Related
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Acts, and Contract Work Hours and Safety Standards Act.
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Administrative hearings or, in some cases, court action may be
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initiated to recover back pay under these laws. In addition,
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liquidated damages may be assessed for certain violations.
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Violators of these laws may also lose their Federal contracts and
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be declared ineligible for future contracts for a specified
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period.
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Where can I obtain additional information?
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If you have any questions or want additional information, please
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contact your local Wage and Hour Area Office, listed in the
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telephone directory under U.S. Government, Department of Labor,
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Employment Standards Administration, Wage and Hour Division. |