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What is the Fair Labor Standards Act (FLSA)?

  • By: Lipp Law
    Published: June 13, 2023

Federal labor laws and regulations have protected employees’ rights to minimum wage and overtime pay and prohibited oppressive child labor for the past 85 years. Most employers in both private and public sectors must adhere to these federally established standards. Over the years, states have likewise enacted labor laws expanding federal requirements. What is the Fair Labor Standards Act (FLSA)?

FLSA establishes employee protections related to their wages and hours, and it dictates parameters around employing those under 18 years of age. This federal law intends to facilitate basic fairness in wage and hour conditions across employers in both the private and public sectors.

What is the FSLA minimum wage?

Under FLSA, the minimum wage is $7.25 per hour. States often have their own minimum wage requirements at higher rates than the federal standard.

Minimum wage is the following across the DC metropolitan area:

  • $17.00 per hour (as of July 1, 2023) in Washington, D.C.
  • $13.25 per hour (as of January 1, 2023) in Maryland
  • $12.00 per hour (as of January 1, 2023) in Virginia

For tipped employees—defined under FLSA, Maryland, and Virginia laws as those who receive more than $30.00 per month in tips and with no specified monthly tip amount in DC—minimum wages are currently:

  • $2.13 under FLSA.
  • $6.00 per hour (as of July 1, 2023) in Washington, D.C.
  • $3.63 per hour (as of January 1, 2023) in Maryland
  • $2.13 per hour in Virginia

What Are the FLSA Requirements for Overtime Pay in Virginia?

If a non-exempt employee works more than 40 hours in one workweek, his or her employer must pay 1.5 times the employee’s hourly rate for those excess hours.

For calculation purposes, a workweek is considered seven consecutive 24-hour periods. Whether the employee is compensated on an hourly basis, salaried, or otherwise, an employer is still obligated to ensure proper calculation of overtime payments to its non-exempt employees.

Do you have to pay an employee for unauthorized work?

Unauthorized work is when a non-exempt employee works more than 40 hours in a workweek without prior approval. Some employers implement policies requiring employees to obtain approval before working overtime hours. Employers are nonetheless obligated to pay employees for all hours worked as required by FLSA.

Even if an employer prohibits overtime work, or an employee violates a policy requiring prior approval for overtime work, an employer is required to pay for overtime hours worked.

Who is exempt from FLSA?

Being an exempt employee means an employee is exempt from minimum wage and overtime pay requirements under FLSA. Exemptions depend on the type of work performed by the employee and whether they are highly compensated.

FLSA provides the following exemptions:

  • Executive exemption applies to an employee compensated on a salary basis whose primary duty is managing an enterprise (or customarily recognized department of an enterprise) with at least two or more direct reports and has the authority to hire or fire employees.
  • Administrative exemption applies to an employee compensated on a salary or fee basis whose primary duty is the performance of office or non-manual work directly related to management or general business operations through the employee’s discretion and independent judgment.
  • Professional exemption applies to an employee compensated on a salary or fee basis whose primary duty is performing work requiring advanced knowledge in a field of science or learning and consistent exercise of discretion and judgment. Also applies to an employee compensated on a salary or fee basis whose primary duty is performing work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.
  • Computer employee exemption applies to an employee compensated on either a salary or fee basis, or, if compensated on an hourly basis, at a rate not less than $27.63 per hour, and includes computer systems analysts, computer programmers, software engineers or other similarly skilled workers in the computer field.
  • Outside sales exemption applies to an employee whose primary duty is making sales and who regularly works outside the employer’s place of business.

Highly compensated employees are those who engage in office or non-manual work for annual compensation of $107,432 or more. They are exempt from FLSA if they customarily and regularly perform the duties of an executive, administrative, or professional employee as explained above.

Should exempt employees record their hours?

Employers are obligated to track non-exempt employees’ hours worked and meal periods, but not for exempt employees. Employers may nonetheless track exempt employees’ hours for various reasons, including attendance, client billing, or paid time off accrual calculations.

What are the three tests for FLSA?

When determining whether the exemptions above apply, an employer applies the three following tests:

  • Salary basis test: Exempt employees receive predetermined amounts of compensation each pay period that occurs on at least a weekly basis.
  • Salary level test: Exempt employees receive at least $684.00 per week.
  • Duties test: Depending on the exemption, exempt employees must perform duties typical of executive, administrative, or professional positions.

How does the FLSA govern child labor?

FLSA sets minimum age requirements, bans minors from working in hazardous occupations, and limits the days and hours of work that minors may work.

Specifically, 16- and 17-year-olds may be employed for unlimited hours in any occupations other than hazardous ones, and 14- and 15-year-olds may only be employed outside school hours in non-manufacturing and non-hazardous occupations for limited amounts of hours, days, and parts of the year.

For minors under 14, their employment is mostly prohibited unless exempt from FLSA, such as newspaper delivery and acting, or not covered by FLSA, such as casual lemonade stands, babysitting, or minor chores.

Does the FLSA provide breaks to employees?

FLSA does not require employers to provide employees with breaks. DC, Maryland, and Virginia laws likewise do not require employers to provide employees with breaks. For those under age 16, Virginia requires employers to provide a 30-minute breach after five consecutive hours, and for those under 18, Maryland requires a 30-minute break after five consecutive hours.

When breaks and meal periods are permitted, they may be considered compensable work hours if less than 20 minutes, but longer meal periods lasting at least 30 minutes are often not compensable.

What are the Common FLSA employer pitfalls?

Misclassification of employees as exempt and insufficient recordkeeping are common mistakes that employers make in violation of FLSA.

Misclassification is costly because FLSA is an employee-friendly law, and the penalties are severe. If found in violation of FLSA for failing to pay overtime, an employer is liable for the unpaid overtime amount, liquidated damages equal to the unpaid overtime amount, attorneys’ fees and litigation costs, and potential penalties imposed by the Department of Labor.

Insufficient recordkeeping of employee hours, particularly in instances where an employer misclassified an employee as exempt, further harms the employer when accused of FLSA violations. If an employer has not documented employees’ hours worked, an employee’s recounting of overtime hours worked serves as the basis for any unpaid overtime damages.

Hire a qualified employment law attorney – The Lipp Law Firm, PC

FLSA applies to both private and public sector employers, ensuring employees are at least compensated at a minimum wage rate and for hours spent working outside a typical workweek. State and local laws often expand requirements placed on employers.

The complexities of wage law may affect even the most diligent employers. Regardless of intent, penalties for violating FLSA, and its state and local counterparts, quickly become costly. Lipp Law is available to assist your business with understanding and ensuring wage law compliance and defending against employee claims.


Kathryn Megan Lipp

Katie dedicates her practice to employment separation guidance.
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