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FLSA Overtime and Wage Attorneys in Atlanta, GA

The laws are complicated – we will tell you if you have a claim with no obligation

Employment statutes and regulations are complicated — employees often do not know whether they have a claim until they speak with a lawyer. At Hall & Lampros, the call is free and we will never charge a fee unless you recover. For a free consultation regarding your wage or overtime violation claim, call or text our Atlanta attorneys at 404-876-8100 now or complete an intake form on our contact page and we will call you!

We’ll Answer Your Questions Even if You Are Not Ready to Sue

Unlike many other cases, persons with employment claims often want to know whether they have a claim even if they are not sure whether they want to pursue it. We understand: you want to know your rights but that does not necessarily mean you are ready to sue. You may not want to sue until you get another job. Or sometimes, the money is so good (even with the overtime violations) that you don’t want to upset the applecart just yet. Other times, you know a co-worker who may want to make a claim first (so you are not the first claimant). All of this is ok! We advise employees that they can wait: their FLSA claims will not expire for 2 years (three years in the case of willful violations).

Can my employer fire me for making a claim?

It is illegal for your employer to fire you for making a federal claim for unpaid minimum wage or overtime.

What does it cost me?

Nothing. We will incur all costs. You will pay nothing unless you recover. Under federal law, your employer is often liable for two times your damages plus attorneys’ fees and expenses. This means that, usually, the attorneys’ fees are paid separately so that it does not reduce your recovery.

What do I get if I win?

Federal law usually provides a recovery of two times your unpaid wages. If an employer underpaid you $1,000, you would recover $2,000 (the $1,000 plus and additional $1,000 in liquidated damages plus) attorneys’ fees and costs.

We’ve Recovered for Employees in Over 30 States and 400 FLSA Cases

With over six decades of combined experience, the Atlanta wage & overtime attorneys at Hall & Lampros have successfully prosecuted hundreds of wage and overtime violation claims, including over 300 individual restaurant worker claims. We have represented workers in over 30 states in over 400 FLSA cases.

$1.22MillionRetail Merchandising/Stocking

collective action overtime

$900,000Roof Inspectors

collective action overtime/independent contractor misclassification

ConfidentialRestaurant Trainees

collective action unpaid training

$26,000Warehouse Worker

overtime

$23,475IT Technician

overtime/off-the-clock

$20,000Construction Grader

overtime

$20,000Staffing Recruiter

overtime

$17,000Grocery Kitchen/Meat Counter

overtime

$14,000Construction Worker

overtime

$13,000Manufacturing Facility Maintenance

overtime

$12,500Restaurant Kitchen Worker

overtime/off-the-clock

$11,000Local Delivery Driver-Food Distribution

overtime

$10,000Restaurant Dishwasher

overtime/off-the-clock/minimum wage

$10,000Police K9 Trainer

off duty work

$7,500Restaurant Bartender

overtime/off-the-clock/opening and closing sidework

$7,500Restaurant Server

overtime/off-the-clock/opening and closing sidework

$2,750Convenience Store Asst. and Food Prep

off-the-clock

$2,500Restaurant Worker

illegal tip pool

Common FLSA Claims

Unless a person is specifically exempted, the Fair Labor Standards Act (FLSA) requires that covered employers must pay minimum wage of $7.25 for all hours worked and pay overtime of one-and-a-half times the average hourly rate of for each hour worked more than 40 hours in a workweek. We have substantial experience successfully suing employers for the following common FLSA violations:

  • Failure to pay overtime
  • Misclassifying as Independent Contractors to avoid paying overtime
  • Paying You a Salary to avoid paying overtime
  • Failure to pay for mandatory meetings
  • Failure to pay for travel between job sites
  • Failure to pay for off-the-clock work
  • Clock-in/Clock Out (CICO) violations: not letting you clock in when you arrive or making you clock out early while still working
  • Rolling back hours worked: changing time entries to avoid overtime
  • Failure to pay for training
  • Employer taking tips and illegal tip pools
  • Failure to pay minimum wage
  • Retaliation or Wrongful termination for asking to be paid for overtime
  • Restaurant excessive sidework claims at tip credit wage (dual job claims)

Common FLSA Non-Exempt Jobs Requiring Overtime

  • All blue collar jobs
  • Any worker who earns less
    than $684 per week
  • Carpenters
  • Electricians
  • Mechanics
  • Plumbers
  • Iron workers
  • Craftsmen
  • Operating engineers,
  • Longshoremen,
  • Construction workers
  • Laborers
  • Non-managerial restaurant jobs (cook, dishwasher, bartender, server)
  • Maintenance workers
  • Warehouse workers
  • Landscaping jobs
  • Retail jobs
  • Call centers employees
  • Mechanics
  • Machine service/repair
  • Home repair
  • Forklift operators
  • Local delivery driver
  • Delivery worker
  • Computer technician
  • Computer repair
  • Paralegals
  • Document clerks
  • Cleaning workers
  • Security guards
  • Painters
  • Police
  • Firefighters
  • Paramedics

Frequently Asked FLSA Questions:

Frequently Asked FLSA Questions:

Am I covered under the FLSA?

You are covered under the FLSA if:

  1. Your employer has at least two employees and (1) gross annual revenues (total sales) of $500,000 per year; or (2) is a hospital, business providing medical or nursing care for residents, school and preschool, or government agency; OR
  2. Your work regularly involves you in commerce between States (“interstate commerce”). Examples of employees who are involved in interstate commerce include those who: produce goods (such as a worker assembling components in a factory or a secretary typing letters in an office) that will be sent out of state, regularly make telephone calls to persons located in other States, handle records of interstate transactions, travel to other States on their jobs, and do janitorial work in buildings where goods are produced for shipment outside the State.

Also, domestic service workers (such as housekeepers, full-time babysitters, and cooks) are normally covered by the law.

If you are covered under the FLSA, your employer must pay you minimum wage and overtime for all hours worked in excess of 40 hours unless your particular job fits an FLSA exemption. The primary exemptions are (1) Executive; (2) Administrative; (3) Professional: (4) Outside Sales; (5) Computer Employees:

  1. Executive Exemption

To qualify for the executive employee exemption, all of the following tests must be met:

  • The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $684* per week;
  • The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise;
  • The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
  • The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.
  1. Administrative Exemption

To qualify for the administrative employee exemption, all of the following tests must be met:

  • The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $684* per week;
  • The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
  • The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
  1. Professional Exemption

To qualify for the learned professional employee exemption, all of the following tests must be met:

  • The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $684* per week;
  • The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
  • The advanced knowledge must be in a field of science or learning; and
  • The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.
  1. Outside Sales Exemption

To qualify for the outside sales employee exemption, all of the following tests must be met:

  • The employee’s primary duty must be making sales (as defined in the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and
  • The employee must be customarily and regularly engaged away from the employer’s place or places of business.
  1. Computer Employee Exemption

To qualify for the computer employee exemption, the following tests must be met:

  • The employee must be compensated either on a salary or fee basis (as defined in the regulations) at a rate not less than $684* per week or, if compensated on an hourly basis, at a rate not less than $27.63 an hour;
  • The employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the duties described below;
  • The employee’s primary duty must consist of:1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;2) The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;

    3) The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or

    4) A combination of the aforementioned duties, the performance of which requires the same level of skills.

There are additional exemptions that apply to less common job duties. Click here to see a list of such exemptions. We also can identify those exemptions in a free consultation. Some of those exemptions include the following jobs for which employers usually are not required to pay overtime.

  • Farm workers
  • Recreational establishment workers
  • Seasonal amusement workers
  • Certain commissioned workers of service or retail establishments
  • Domestic service workers who are residing in the employer’s residence
  • Aircraft, auto, boat, trailer, truck, or farm implement salespersons
    • Air carrier as well as railroad workers, taxi drivers, local delivery workers and other motor carriers who are paid based on approved trip rate plans

What jobs generally are covered under the FLSA’s overtime and minimum wage protections?

The exemptions provided by FLSA Section 13(a)(1) apply only to “white-collar” employees who meet the salary and duties tests set forth in the Part 541 regulations. The exemptions do not apply to many office workers and also do not apply to manual laborers or other “blue-collar” workers who perform work involving repetitive operations with their hands, physical skill and energy. FLSA-covered, non-management employees in production, maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers are entitled to minimum wage and overtime premium pay under the FLSA, and are not exempt under the Part 541 regulations no matter how highly paid they might be.

  • All blue collar jobs
  • Carpenters,
  • Electricians,
  • Mechanics
  • Plumbers
  • Iron workers
  • Craftsmen
  • Operating engineers,
  • Longshoremen,
  • Construction workers
  • Laborers
  • Non-managerial restaurant jobs (cook, dishwasher, bartender, server)
  • Housekeepers
  • Maintenance workers
  • Any worker who earns less than $684 per week
  • Warehouse workers
  • Landscaping jobs
  • Retail jobs
  • Call centers employees
  • Mechanics
  • Machine service/repair
  • Home repair
  • Forklift operators
  • Local delivery driver
  • Delivery worker
  • Computer technician
  • Computer repair
  • Paralegals
  • Document clerks
  • Cleaning workers
  • Security Guards
  • Painters
  • Police
  • Firefighters
  • Paramedics

Can an employer fire me or retaliate for asking for overtime or making an FLSA claim?

It is illegal for your employer to fire you or retaliate in any way for making a federal claim for back wages. The FLSA prohibits employers from retaliating against any employee for requesting overtime compensation or proper wages, or filing a lawsuit seeking such compensation. Examples of prohibited retaliation include firing employees, making false statements about employees, providing less preferential treatment relating to shift or table assignments to any employee, harassing employees, threatening employees in any way, interfering with employee’s current or future employment, threatening to report or reporting employees relating to immigration status, and all other retaliatory conduct.

What does it cost for legal advice as to whether I have a claim?

Nothing. We are open 24/7 and will provide a free consultation on whether you have a claim. Text or call 404-876-8100 for the free consultation (or go to this website homepage and enter your information for a consultation).

What does it cost to bring a claim?

Nothing. We will incur all costs. You will pay nothing unless you recover. Under federal law, your employer may be liable for two times your damages plus attorneys’ fees and expenses. This means that, usually, the attorneys’ fees are paid separately so that it does not reduce your recovery.

What states offer additional overtime protections?

The following states have overtime protections that in some cases are greater than the FLSA: California, New York, Alaska, Colorado, Nevada, Washington.

The following states do not offer greater protections than the FLSA except they apply to some employees that are exempt from the FLSA: Kansas, Michigan, Minnesota, Pennsylvania, Vermont, West Virginia.

How long do I have to bring an FLSA claim (what is the statute of limitations)?

You have 2 years to bring a claim if the employer’s FLSA violation was not willful. If the employer either knew or showed reckless disregard for whether its conduct was prohibited by the FLSA, the violation is considered willful and you have 3 years to bring a claim.

Can I bring an FLSA claim against my former employer?

You often can bring a claim against a former employer even if you stopped working there two years (and often three years) before. Because employers are required to keep wage records, a delay in filing a claim usually will not prevent you from getting the evidence you need to win the case.

What can I recover in an FLSA lawsuit if my employer owes me back wages for minimum wage or overtime?

Federal law usually provides a recovery of two times your unpaid wages. If an employer underpaid you $1,000, you could recover $2,000 (the $1,000 plus and additional $1,000 in liquidated damages plus) attorneys’ fees and costs.

Can I recover under the FLSA if I did not pay taxes on the wages or tips I was paid?

You can have a valid claim under the FLSA even if you did not pay taxes on the claim. Courts have held that whether you properly paid taxes is a separate issues that is not connected with an employer’s violation of the FLSA. You therefore can recover under the FLSA even if you did not pay taxes. Solano v. A Navas Party Prod., Inc., 728 F. Supp. 2d 1334 (S.D. Fla. 2010) (“Employee who failed to pay federal income taxes was not barred by in pari delicto from suing under the FLSA; employee was engaged in a legal occupation when employed by defendants, and his wrongdoing, failing to pay federal income taxes on wages already earned, was in no way connected with defendants’ alleged failure to properly compensate him. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq.”); Armstead v. Jay Shree Umiya, Inc., 3:19-CV-00658-CLS, 2021 WL 1087221, at *4 (N.D. Ala. Mar. 22, 2021)

If I signed an agreement to work without overtime can I still recover?

Even if you signed a contract that you will not be paid overtime, you still are entitled to overtime if your job fits within the FLSA requirements.

What if I overstayed my visa? Can I recover under the FLSA?

The FLSA provides protections even if you were working illegally. The FLSA applies and protects persons who have overstayed their visas or who are not authorized to work in the United States. Contreras v. Corinthian Vigor Ins. Brokerage, Inc., 25 F. Supp. 2d 1053, 1056–58 (N.D. Cal. 1998) (employee with expired visa can recover under FLSA and is protected from retaliation in form of reporting to INS); Patel v. Quality Inn South, 846 F.2d 700, 703 (11th Cir.1988

Can and Undocumented Worker Recover Under the FLSA?

The FLSA provides protections even if you were working illegally. The FLSA applies and protects persons who have overstayed their visas or who are undocumented and not authorized to work in the United States. Contreras v. Corinthian Vigor Ins. Brokerage, Inc., 25 F. Supp. 2d 1053, 1056–58 (N.D. Cal. 1998) (employee with expired visa can recover under FLSA and is protected from retaliation in form of reporting to INS); Patel v. Quality Inn South, 846 F.2d 700, 703 (11th Cir.1988

Can my employer report me as an undocumented worker for making an FLSA claim?

Federal law prohibits an employer from reporting you to the INS as an undocumented worker in retaliation for bringing an FLSA claim. Singh v. Jutla & C.D. & R’s Oil, Inc., 214 F. Supp. 2d 1056, 1059 (N.D. Cal. 2002); Reyes-Fuentes v. Shannon Produce Farm, Inc., 671 F. Supp. 2d 1365, 1368 (S.D. Ga. 2009) (“A plaintiff’s citizenship status does not deprive him of FLSA protection, including protection from retaliation, as “Congress has made manifest its intent that all workers, including undocumented aliens, have the right to be free from unlawful retaliation pursuant to the FLSA.” Contreras v. Corinthian Vigor Ins. Brokerage, Inc., 25 F.Supp.2d 1053, 1058 (N.D.Ca.1998).)

Can an employer put me on salary and not pay me overtime?

Many employers try to save money by “putting their employees on salary.” The employer will then tell the employees that they are not entitled to overtime because they are on salary. This is illegal unless the employer is able to show that the employer is not covered under the FLSA or that an overtime exemption exists for the job. Whether your employer considers you to be on salary is irrelevant to the overtime determination.

If I agreed to be paid a salary without overtime, does that waive my claim for overtime?

You cannot waive your rights under the FLSA to overtime. This means that even if you agreed to be paid on salary or if you agreed to be paid as an independent contractor – you still are entitled to overtime if your job fits within the FLSA requirements. It is completely irrelevant whether you agreed to be paid a salary for purposes of the FLSA. It is completely irrelevant whether you agreed to be paid as an independent contractor.

Are police, fire fighters, paramedics, and other first responders entitled to overtime?

Yes. The FLSA also applies to police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees, regardless of rank or pay level, who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work.

Are there different laws in different states relating to overtime and minimum wage?

Many states have laws (for example California and New York) that provide greater protections than the FLSA. State specific minimum wage and overtime laws are found here (https://www.dol.gov/agencies/whd/minimum-wage/state) We can discuss state specific guidelines in a free consultation.

WagesIs an employer required to pay overtime if I am an independent contractor?

An employer is not required to pay overtime to an independent contract. The key issue however is this: Is your employer properly classifying you as an independent contractor for purposes of avoiding overtime? Employers often label their employees as independent contractors: but the label does not apply. Also, you cannot “agree that you are an independent contractor if you really are not.” The FLSA prohibits this practice because it would result in you “waiving” your right to overtime. Here is the independent contractor test:

Jobs where employers often misclassify employees as independent contractors:

  • Cleaning
  • Home repair
  • Home service
  • Maintenance
  • Painters
  • Insurance inspectors
  • Computer technicians
  • Local delivery

How do I know if I am truly an independent contractor and not entitled to overtime?

Your employer does not get to decide whether you are an employee, or an independent contractor, and you cannot waive your right to overtime by agreeing that you are an independent contractor. We have won over a million dollars on behalf of workers who were forced to sign an agreement that they were independent contractors when in fact they were not. They were entitled to overtime and the workers got paid their back wages.

Whether you are an independent contractor is decided by factors set by the United States Supreme Court. Hall & Lampros has substantial experience applying these factors and can give you a good idea of whether you are properly classified in a short phone call. The factors set by the United States Supreme Court are:

  1. The extent to which the services rendered are an integral part of the principal’s business (how important is what you do to your employer: if you provide cleaning services for a cleaning company you are an integral part of the company’s business; if you provide painting services for a painting company, you are integral).
  2. The permanency of the relationship (is it a temporary engagement or permanent (over a lengthy period of time))
  3. The amount of the alleged contractor’s investment in facilities and equipment (does your employer pay for your tools, work supplies, training, computers)
  4. The nature and degree of control by the principal. (who decides when you work, where you work, and what you do?)
  5. The alleged contractor’s opportunities for profit and loss (does your employer assume the risk and get most of the rewards from your work?)
  6. The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
  7. The degree of independent business organization and operation. (do you have a separate business organization, separate office location, separate computers, separate phone lines?)

If I agreed to be an independent contractor without overtime, does that waive my claim for overtime?

Does that waive my claim for overtime? You cannot waive your rights under the FLSA to overtime. This means that even if you agreed to be paid as an independent contractor – you still are entitled to overtime if your job fits within the FLSA requirements. It is completely irrelevant whether you agreed to be paid as an independent contractor.

Am I entitled to overtime if I am paid with a 1099?

The rules relating to 1099 employees are the same as with independent contractors. An employer is required to pay you overtime – regardless of whether you are paid by 1099 – if you are not exempt under the FLSA and you do not qualify as an independent contractor.

Can an employer require me to attend meetings or training without pay?

The FLSA requires your employer to pay you minimum wage (and applicable overtime if you work more than 40 hours per week) for the time spent at all meetings, including safety meetings and beginning of the day meetings. Courts often consider such events that are less than 10 minutes to be de minimis. Court usually consider any unpaid work for more than 10 minutes to be a violation of the FLSA. See, Daniels v. Sanchelima & Assocs., P.A., No. 1:15-cv-21321, 2016 WL 4903065, at *4 (S.D. Fla. Jan. 20, 2016) (J. Ungaro); Freese v. Treecycle Land Clearing Inc., No. 17-CV-81169, 2019 WL 2637298, at *3 (S.D. Fla. Apr. 10, 2019).

The Supreme Court in Anderson explained the de minimis rule as follows:

When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act. It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.

Burton v. Hillsborough Cty., Fla., 181 F. App’x 829, 838 (11th Cir. 2006).

When applying the de minimis rule, a court considers three factors: “(1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.” Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir. 1984).

Jackson v. ThinkDirect Mktg. Grp., Inc., No. 1:16-CV-03749, 2019 WL 8277236, at *5 (N.D. Ga. Dec. 9, 2019).

A compensable “integral and indispensable” activity is rendered noncompensable if the time spent performing that activity is de minimis. “Courts have found as a matter of law a general threshold for de minimis as ten minutes or less, even if the work is otherwise compensable.” See Daniels v. Sanchelima & Assocs., P.A., No. 1:15-cv-21321, 2016 WL 4903065, at *4 (S.D. Fla. Jan. 20, 2016) (J. Ungaro).

Freese v. Treecycle Land Clearing Inc., No. 17-CV-81169, 2019 WL 2637298, at *3 (S.D. Fla. Apr. 10, 2019)

Can an employer require me to work off the clock?

No. The FLSA requires that your employer pay you at least minimum wage for all ours worked even if you were off the clock or forgot to clock in. Your employer must also pay you overtime based on all time actually worked, regardless of whether you were clocked in or at the work premises when working.

Can an employer roll back my time to reduce the hours for which I receive pay?

No. The FLSA requires that your employer pay you at least minimum wage and applicable overtime for all ours worked and cannot avoid paying you overtime and minimum wage by rolling back the time reflected in your clock-in/clock-out data.

Can my employer require me to show up early for work without pay?

If your employer makes you show up or stay late for at least ten minutes, you are entitled to compensation under the FLSA. See, Daniels v. Sanchelima & Assocs., P.A., No. 1:15-cv-21321, 2016 WL 4903065, at *4 (S.D. Fla. Jan. 20, 2016) (J. Ungaro); Freese v. Treecycle Land Clearing Inc., No. 17-CV-81169, 2019 WL 2637298, at *3 (S.D. Fla. Apr. 10, 2019).

Am I entitled to pay for travel time?

Under The Portal to Portal Act of 1947 (29 USC §§251-262), your employer generally is not required to pay you for (1) the time spent travelling to your place of work (or if you work at multiple locations, to your first place of work); and (2) the time spent travelling home from your last place of work. Your employer generally is required to pay you for all travel during the workday. So, any required travel between work sites or work locations during the day usually must be compensated under the FLSA.

Is my employer required to pay me for “on call” time at nights or on weekends?

It depends. If the on-call conditions are so restrictive and the calls or duties during that on-call time so frequent that the employee cannot effectively use that time for personal purposes, then the on-call time may be compensable. Typically, if you can be “on-call” from home, your time may not be compensable. However, if the on-call requirements are so restrictive that it limits your ability to use that time for personal purposes, you may be entitled to payment for your on-call time. The Department of Labor’s treatment of this issue is here: Fact Sheet #22: Hours Worked Under the FLSA.

In Gregory v. Quality Removal, Inc., No. 14-21480-CIV, 2014 WL 5494448, at *8 (S.D. Fla. Oct. 30, 2014), the court held “Under long-standing FLSA precedent, time in which an employee is “engaged to wait”, that is, “time spent primarily for the benefit of the employer and his business,” is compensable. See Armour & Co. v. Wantock, 323 U.S. 126, 132, 65 S.Ct. 165, 89 L.Ed. 118 (1944).”

In Lurvey v. Metro. Dade Cty., 870 F. Supp. 1570, 1579 (S.D. Fla. 1994) held that to determine whether on-call time is compensable under FLSA, a court must examine: (1) the agreements between the particular parties; (2) appraisal of their practical construction of the working agreement by conduct; (3) consideration of the nature of the service; and (4) all of the surrounding circumstances. Note: The third and fourth factors are essentially embodied in the seven-factor test set out below established by the Ninth Circuit, Owens, 971 F.2d 347.

In Owens v. Local No. 169, Ass’n of W. Pulp & Paper Workers, 971 F.2d 347, 351 (9th Cir. 1992), as amended (Aug. 18, 1992), the court held:

Courts have considered a number of factors in determining whether an employee plaintiff had use of on-call time for personal purposes:

  1. whether there was an on-premises living requirement;
  2. whether there were excessive geographical restrictions on employee’s movements;
  3. whether the frequency of calls was unduly restrictive;
  4. whether a fixed time limit for response was unduly restrictive;
  5. whether the on-call employee could easily trade on-call responsibilities;
  6. whether use of a pager could ease restrictions; and
  7. whether the employee had actually engaged in personal activities during call-in time.

Such a list is illustrative, not exhaustive. No one factor is dispositive.

Is my employer required to pay me for responding after hours to emails or phone calls?

It depends. After hours emails and calls are likely compensable assuming the time is not di minimus (takes longer than 10 minutes or so). If, however, the after-hours calls or emails are just a quick simple reminder or question, such as asking if the employee can return to work, that time spent answering “yes” or “no” is likely not compensable.

Burnette v. Northside Hosp., 342 F. Supp. 2d 1128, 1135–36 (N.D. Ga. 2004) (“Put another way, Burnette’s only on-call duty was to return any telephone calls from Schempp concerning after-hours work and tell him “yes” or “no.” In light of this Circuit’s law, the law of other circuits and plain common sense, no reasonable person could believe that this minimal request by his employer severely restricted Burnette’s use of his personal time or restricted it at all.”)

Courts generally find that after hours work that takes less than 10 minutes is not compensable.

Freese v. Treecycle Land Clearing Inc., No. 17-CV-81169, 2019 WL 2637298, at *3 (S.D. Fla. Apr. 10, 2019) (“A compensable integral and indispensable” activity is rendered noncompensable if the time spent performing that activity is de minimis. Courts have found as a matter of law a general threshold for de minimis as ten minutes or less, even if the work is otherwise compensable.

Moreover, the after-hours calls or emails cannot be requests by the employee, such as requesting time off.

Jenkins v. Anton, 922 F.3d 1257, 1262 (11th Cir. 2019) (“The Court discounted the emails that Employee sent after normal business hours because many of them would have taken Employee no more than two or three minutes to draft. Others were unrelated to work or asked for time off.”).

However, if the after-hours calls or emails are frequent, than it could raise to the level of compensable. In a situation where your employer asks you quick, short questions but asks several dozens of them in short secession, you may have a claim for unpaid hours.

Jackson v. ThinkDirect Mktg. Grp., Inc., No. 1:16-CV-03749, 2019 WL 8277236, at *5 (N.D. Ga. Dec. 9, 2019) (“When applying the de minimis rule, a court considers three factors: “(1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.”).

Can my employer charge me for my uniform and safety equipment?

Uniforms –

If you are paid minimum wage (or under a tip credit wage), your employer cannot require you to pay for uniform costs under FLSA because such a deduction would bring your hourly pay below minimum wage. Moulton v. W.W.I., Inc., No. 1:18-CV-67-ALB, 2019 WL 3558032, at *1,*5 (M.D. Ala. Aug. 5, 2019) (granting summary judgment to plaintiffs on this issue, where an employer who paid employees a tip credit of $2.15 per hour deducted from employees’ pay initial uniforms, three shirts, two aprons, and any replacements bringing their hourly wage below minimum wage.) Courts have held that an employer cannot shift the cost of purchasing uniforms to a minimum wage employee, see:

Uniforms are primarily for the benefit of the employer, therefore a minimum wage employee cannot be required to purchase their own uniforms. Arriaga v. Florida Pacific Farms, L.L.C., 305 F.3d 1228, 1236 (11th Cir. 2002) (“An employer may not deduct from employee wages the cost of [uniforms] which primarily benefit the employer if such deductions drive wages below the minimum wage. See 29 C.F.R. § 531.36(b). This rule cannot be avoided by simply requiring employees to make such purchases on their own, either in advance of or during the employment.”)

Nail v. Shipp, No. CV 17-00195-KD-B, 2019 WL 3719397, at *7 (S.D. Ala. Aug. 6, 2019) “[E]ach required purchase of an apron which reduced an employee’s wages below minimum wage would violate the FLSA’s tip-credit provisions.” Id. at *8.

The issue then is whether the Plaintiffs received sufficient remuneration above minimum wage to compensate for the purchase of the apron. Tipped employees remuneration from the employer is the total of cash wages (in this case $2.13), the tip credit claimed (in this case $5.12) and the fair value of facilities furnished to the employee by the employer (e.g., meals). 29 C.F.R. § 531.60. The remainder of the money earned in tips is not remuneration. As explained in the context of determining overtime pay, “tips [in excess of the tip credit] are not payments made by the employer to the employee as remuneration for employment within the meaning of the Act.” 29 C.F.R. § 531.60. Therefore, when determining whether Plaintiffs earned more than minimum wage, tips received over the tip credit claimed are not considered.

Nail v. Shipp, No. CV 17-00195-KD-B, 2019 WL 3719397, at *8 (S.D. Ala. Aug. 6, 2019) (Note, free meals may be included to increase the remuneration sufficiently above minimum wage).

Uniforms: The FLSA does not require that employees wear uniforms. However, if the wearing of a uniform is required by some other law, the nature of a business, or by an employer, the cost and maintenance of the uniform is considered to be a business expense of the employer. If the employer requires the employee to bear the cost, it may not reduce the employee’s wage below the minimum wage of $7.25 per hour effective July 24, 2009. Nor may that cost cut into overtime compensation required by the Act.

For example, if an employee who is subject to the statutory minimum wage of $7.25 per hour (effective July 24, 2009) is paid an hourly wage of $7.25, the employer may not make any deduction from the employee’s wages for the cost of the uniform nor may the employer require the employee to purchase the uniform on his/her own. However, if the employee were paid $7.75 per hour and worked 30 hours in the workweek, the maximum amount the employer could legally deduct from the employee’s wages would be $15.00 ($.50 X 30 hours).

FLSA Fact Sheet #16: Deductions From Wages for Uniforms and Other Facilities Under the Fair Labor Standards Act (FLSA), https://www.dol.gov/agencies/whd/fact-sheets/16-flsa-wage-deductions

Safety Equipment –

Safety equipment is like uniforms under the FLSA (employer cannot require purchase of safety equipment if it brings the employee’s compensation below minimum wage). The requirement to purchase safety equipment may also be a violation of the Occupation Safety and Health Act of 1970 (29 U.S.C. § 651, et seq.) If the safety equipment is primarily for the benefit of the employer then it cannot be included in computing wages and therefore deducted from an employee’s wage. See, 29 C.F.R. § 531.3. Also, if it is personal protective equipment, the employer must provide it at no cost to the employee according to OSHA regulation. See, 29 C.F.R. 1910.132.

Except as provided by paragraphs (h)(2) through (h)(6) of this section, the protective equipment, including personal protective equipment (PPE), used to comply with this part, shall be provided by the employer at no cost to employees.

29 C.F.R. § 1910.132.

Certain costs—for example, food for employees20 and safety equipment used by employees21—categorically are either for the benefit of the employee or the employer. Other categories are more nuanced; the costs are primarily for the benefit of the employer or the employee depending on the specific facts. By looking at items classified by the regulations as “other facilities”, it is apparent that the line is drawn based on whether the employment-related cost is a personal expense that would arise as a normal living expense.

Arriaga v. Fla. Pac. Farms, L.L.C., 305 F.3d 1228, 1243 (11th Cir. 2002). “Safety caps, explosives, and miners’ lamps (in the mining industry)” are “primarily for the benefit or convenience of the employer.” 29 C.F.R. § 531.32(c). Id. at n. 22.

It should also be noted that under § 531.3(d)(1), the cost of furnishing “facilities” which are primarily for the benefit or convenience of the employer will not be recognized as reasonable and may not therefore be included in computing wages. Items in addition to those set forth in § 531.3 which have been held to be primarily for the benefit or convenience of the employer and are not therefore to be considered “facilities” within the meaning of section 3(m) include: Safety caps, explosives, and miners’ lamps (in the mining industry); electric power (used for commercial production in the interest of the employer); company police and guard protection; taxes and insurance on the employer’s buildings which are not used for lodgings furnished to the employee; “dues” to chambers of commerce and other organizations used, for example, to repay subsidies given to the employer to locate his factory in a particular community; transportation charges where such transportation is an incident of and necessary to the employment (as in the case of maintenance-of-way employees of a railroad); charges for rental of uniforms where the nature of the business requires the employee to wear a uniform; medical services and hospitalization which the employer is bound to furnish under workmen’s compensation acts, or similar Federal, State, or local law. On the other hand, meals are always regarded as primarily for the benefit and convenience of the employee. For a discussion of reimbursement for expenses such as “supper money,” “travel expenses,” etc., see § 778.217 of this chapter.

29 C.F.R. § 531.32

(d)(1) The cost of furnishing “facilities” found by the Administrator to be primarily for the benefit or convenience of the employer will not be recognized as reasonable and may not therefore be included in computing wages.

(2) The following is a list of facilities found by the Administrator to be primarily for the benefit of convenience of the employer. The list is intended to be illustrative rather than exclusive: (i) Tools of the trade and other materials and services incidental to carrying on the employer’s business; (ii) the cost of any construction by and for the employer; (iii) the cost of uniforms and of their laundering, where the nature of the business requires the employee to wear a uniform.

29 C.F.R. § 531.3

Is my employer required to pay me for time spent putting on work gear and safety equipment (donning and duffing)?

This issue arises when employees must take unpaid time (off-the-clock) donning and doffing protective gear (for example heat or chemical splash protection). This issue can be complicated based on various factors such as needs to shower or scrub at conclusion of workday. Other issues are whether there is a collective bargaining agreement addressing the issue. IBP, Inc. v. Alvarez, 546 U.S. 21, 27, n. 2, 126 S. Ct. 514, 520, n. 2, 163 L. Ed. 2d 288, n. 2 (2005); Anderson v. Cagle’s, Inc., 488 F.3d 945, 958 (11th Cir. 2007).

A good rule of thumb however, is that there may be a claim under the FLSA for donning and duffing if the start-of-day and end-of-day donning and duffing results in unpaid time of more than 10 minutes a day. Anderson v. Perdue Farms, Inc., 604 F. Supp. 2d 1339, 1360 (M.D. Ala. 2009); Davis v. Charoen Pokphand (USA), Inc., 302 F. Supp. 2d 1314, 1323 (M.D. Ala. 2004); Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir.1984).

It depends on whether the donning and doffing of the protective gear is an integral and indispensable activity. Merely, putting on protective gear because it is indispensable to the work performed does not make that time compensable. The time spent donning and doffing the protective gear must be an integral activity of the work and therefore an intrinsic portion or element of the employee’s work activities. See, LLorca below. If the equipment is 1) required by the employer; 2) technically necessary; and 3) the employer primarily benefits from the activity, then such donning and doffing is compensable. See, Chao v. Tyson Foods below. Such work must also not be de minimis. Id.

A law enforcement officer’s donning and doffing of protective gear would most likely not be compensable; however, the donning and doffing of a battery plant worker who uses toxic materials and must change clothes and shower at the facility due to state laws, would be compensable time. Id. Moreover, the changing of clothes is not compensable and such donning and doffing must include the donning and doffing of other protective gear for a majority of time.

Authority

The Supreme Court established the “integral and indispensable” doctrine in Steiner v. Mitchell, in which the Court addressed pre– and post-shift donning, doffing, and showering claims by battery plant workers. Steiner, 350 U.S. at 248, 76 S.Ct. at 331. The Court concluded that, due to the hazardous conditions in which the employees worked, the donning, doffing, and showering at issue were integral and indispensable to their ability to perform their principal work activities inside the plant. 350 U.S. at 252–53, 76 S.Ct. at 333–34.

Chao v. Tyson Foods, Inc., 568 F. Supp. 2d 1300, 1311 (N.D. Ala. 2008)

In the present case, some of the employees’ protective outerwear is required by Defendant, while some is optional.11 Applying Dunlop’s three-part analysis, the first element is readily satisfied as to the required items at issue.

As to the second element, Defendant concedes that the donning, doffing, and washing of required items is “technically necessary.” Therefore, as to required items, the primary remaining issue is whether Defendant “primarily benefits” from such activities. This element is addressed infra.

Chao v. Tyson Foods, Inc., 568 F. Supp. 2d 1300, 1313 (N.D. Ala. 2008)

(o) Hours Worked.–In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.

29 U.S.C.A. § 203 (West)

Applying the foregoing principles to the facts of this case, we hold that petitioners’ donning and doffing of the protective gear at issue qualifies as “changing clothes” within the meaning of § 203(o).

571 U.S. 220, 232, 134 S.Ct. 870, 879.

“If an employee devotes the vast majority of the time in question to putting on and off equipment or other non-clothes items (perhaps a diver’s suit and tank) the entire period would not qualify as ‘time spent in changing clothes’ under § 203(o), even if some clothes items were donned and doffed as well.” Sandifer v. U.S. Steel Corp., 571 U.S. 220, 235, 134 S. Ct. 870, 881, 187 L. Ed. 2d 729 (2014) (the donning and doffing must be more than clothes).

Because donning and doffing gear that is “integral and indispensable” to employees’ work is a “principal activity” under the statute, the continuous workday rule mandates that the time the No. 04-66 petitioners spend walking to and from the production floor after donning and before doffing, as well as the time spent waiting to doff, are not affected by the Portal-to-Portal Act, and are instead covered by the FLSA.

IBP, Inc. v. Alvarez, 546 U.S. 21, 22–23, 126 S. Ct. 514, 517, 163 L. Ed. 2d 288 (2005)

However, § 4(a)(2) excludes from the FLSA’s scope the time employees spend waiting to don the first piece of gear that marks the beginning of the continuous workday. Such waiting—which is two steps removed from the productive activity on the assembly line—comfortably qualifies as a “preliminary” activity.

IBP, Inc. v. Alvarez, 546 U.S. 21, 23, 126 S. Ct. 514, 517, 163 L. Ed. 2d 288 (2005)

Even though donning and doffing protective gear may arguably be “indispensable,” we hold that it is not “integral” to the deputies’ principal activities. An “integral” activity “form[s] an intrinsic portion or element [of the principal activities], as distinguished from an adjunct or appendage.” Integrity Staffing, 135 S.Ct. at 517 (quoting 5 OED 366). The deputies’ principal activities are law enforcement duties—i.e., enforcing traffic laws, responding to emergencies, conducting investigations, and generally engaging in crime prevention. The gear is arguably indispensable in the sense that the deputies cannot dispense with the gear if they are to perform their principal activities. But the mere fact that the deputies must go through the activity of donning and doffing the gear in order to have it available when they are on duty does not make the donning and doffing process an intrinsic element of law enforcement. See Gorman, 488 F.3d at 594 (“[A] helmet, safety glasses, and steel-toed boots may be indispensable to plaintiffs’ principal activities without being integral. The donning and doffing of such generic protective gear is not different in kind from ‘changing clothes and showering under normal conditions,’ which, under Steiner, are not covered by the FLSA.” (footnote omitted) (quoting Steiner, 350 U.S. at 249, 76 S.Ct. at 332)). Here, donning and doffing is an entirely separate activity from the deputies’ principal law enforcement duties. We therefore conclude that the donning and doffing in these cases is a preliminary and postliminary activity as contemplated by § 254(a).

Llorca v. Sheriff, Collier Cty., Fla., 893 F.3d 1319, 1324–25 (11th Cir. 2018)

Can my employer hold back, or delay, or fail to pay me my last paycheck?

Federal law does not address when an employer is required to pay an employee a final paycheck. Some states have specific requirements for immediate payment. Georgia has no law addressing the timing of final paychecks. Most courts apply a reasonableness standard. Typically, a reasonable time is the former employee’s next scheduled pay period/check. The Department of Labor’s treatment of this issue is here: FAQ Page on DOL Website.

Some states have specific requirements on payment of the last paycheck, while others have no specific requirement. For states with no requirement, the employer must act reasonably and cannot unreasonably delay payment of owed wages. The laws of each of the 50 states and the District of Columbia are set out below:

State Deadlines for Paying Final
Paycheck to Fired Employees
Deadline for Paying Final
Paycheck to Employees Who Quit
Alabama None None
Alaska 3 working days after employee’s last day Next payday that is at least 3 working days after employee’s last day
Arizona 7 working days after employee’s last day,
or the next regular payday (whichever comes first)
Next payday
Arkansas 7 days after termination Next payday
California Immediately 72 hours after quitting
Colorado Immediately Next payday
Connecticut Next working day Next payday
Delaware Next payday Next payday
District of Columbia Next working day Next payday or within 7 days, whichever is earlier
Florida None None
Georgia None None
Hawaii Immediately, or next working day Next payday, or immediately if employee gave advance notice
Idaho Next payday or 10 working days Next payday or 10 working days
Illinois Next payday Next payday
Indiana Next payday Next payday
Iowa Next payday Next payday
Kansas Next payday Next payday
Kentucky Next payday or 14 days, whichever is later Next payday or 14 days, whichever is later
Louisiana Next payday or 15 days, whichever is earlier Next payday or 15 days, whichever is earlier
Maine Next payday Next payday
Maryland Next payday Next payday
Massachusetts Next payday Next payday
Michigan Next payday Next payday
Minnesota Within 24 hours of demand Next payday at least 5 days after employee’s last day, but no more than 20 days after final day
Mississippi None None
Missouri Immediately None
Montana Immediately None
Nebraska Next payday or within 2 weeks, whichever is earlier Next payday or within 2 weeks, whichever is earlier
Nevada Within 3 days Next payday or within 7 days, whichever is earlier
New Hampshire Within 72 hours Next payday
New Jersey Next payday Next payday
New Mexico Within 5 days, except that task, piece, and commission wages due within 10 days Within 5 days, except that task, piece, and commission wages due within 10 days
New York Next payday Next payday
North Carolina Next payday Next payday
North Dakota Next payday Next payday
Ohio Next payday Next payday
Oklahoma Next payday Next payday
Oregon Next business day Immediately if employee gave 48 hours notice; within 5 working days if employees did not give 48 hours notice
Pennsylvania Next payday Next payday
Rhode Island Next payday Next payday
South Carolina Within 48 hours or next payday, not exceeding 30 days Within 48 hours or next payday, not exceeding 30 days
South Dakota Next payday Next payday
Tennessee Within 21 days Within 21 days
Texas Within 6 days Next payday
Utah Within 24 hours Next payday
Vermont Within 72 hours Next payday
Virginia Next payday Next payday
Washington Next payday Next payday
West Virginia Next payday Next payday
Wisconsin Next payday Next payday
Wyoming Next payday Next payday

Is my employer allowed to take some of my tips?

No, your employer is not allowed to take your tips. FLSA, 29 U.S.C. 203(m) (“[a]n employer may not keep tips received by its employees for any purpose, including allowing managers or supervisors to keep any portion of employees’ tips, regardless of whether or not the employer takes a tip credit.”) An employer cannot pay any of your tips to managers, assistant managers, cooks, dishwashers or any other person who does not customarily earn tips.

Can my restaurant pay me based on a tip credit for opening and closing sidework duties? A restaurant cannot pay you a tip credit wage while requiring you to perform opening and closing sidework. See February 15, 2019 Department of Labor Field Assistance Bulletin No. 2019-2 (https://www.dol.gov/agencies/whd/field-assistance-bulletins/2019-2) (a restaurant “employer may take a tip credit for any duties that an employee performs in a tipped occupation that are related to that occupation and either performed contemporaneous with the tip producing activities or for a reasonable time immediately before or after the tipped activities.”) We have successfully represented hundreds of servers and bartenders relating to excessive sidework claims.

Is my restaurant tip pool legal?

A tip pool is a process by which tipped employees at restaurants share tips with other employees who customarily receive tips. The ability to keep tips or share tips from a tip pool allows the employer to pay less than the minimum wage under a tip credit. The federal minimum wage is $7.25, but employers can pay $2.13 if they allow their tipped employees to keep tips or participate in a tip pool.

An illegal tip pool is whether the restaurant keeps some of the tips for itself, or pays non-tipped employees (such as managers, dishwashers, or cooks) money that servers and bartenders earned as tips.

If you are in a mandatory tip pool where money from the tip pool is shared with management or non-customarily tipped employees, this is what is known as an illegal tip pool. Kubiak v. S.W. Cowboy, Inc., 164 F. Supp. 3d 1354-55 (M. D. Fla. 2016). Non-customarily tipped employees include positions such as: dishwashers, cooks, chefs, and janitors. Kubiak 1355; see also, U.S. Dept. of Labor, Wage and Hour Division, “Fact Sheet #15: Tipped Employees Under the Fair Labor Standards Act (FLSA)” at 1; 29 U.S.C.A. § 203(m).

In 2018, the FLSA was amended to specifically address this issue: “An employer may not keep tips received by its employees for any purposes, including allowing managers or supervisors to keep any portion of employees’ tips, regardless of whether or not the employer takes a tip credit.” 29 U.S.C.A. § 203 (m)(2)(B).

Therefore, regardless if you are paid minimum wage or a tip credit, your employer cannot keep any portion of your tips or make you take part in an invalid tip pool with managers, supervisors, dishwashers, cooks, chefs, or janitors or any other non-customarily tipped employee.

You are entitled to the “amount of the sum of any tip credit taken by the employer and all such tips unlawfully kept by the employer, and in an additional equal amount as liquidated damages.” 29 U.S.C.A. § 216(b).

Can my employer require me to go to arbitration on my FLSA claims?

Many employers require their employees to sign an “arbitration agreement” agreeing to submit any employment disputes to arbitration. The Supreme Court in 2018 affirmed that employers can compel arbitration of FLSA claims, including FLSA class action (“collective action”) claims. Epic Systems Corp. v. Lewis, 584 U.S. ___, 138 S.Ct. 1612 (2018). If you signed such an agreement, you would need to pursue your claim in arbitration. But if you have a valid claim, there is nothing about arbitration that should interfere with your recovery. Employers are permitted to compel employees to arbitrate their claims pursuant to the Federal Arbitration Act. 9 U.S.C. § 1, et. seq.

According to the American Bar Association, arbitration is a private process where disputing parties agree that one or several individuals (arbitrators) can decide about the dispute after receiving evidence and hearing arguments. Your rights in arbitration are the same rights that you have if you file a lawsuit (except that there are limitations on your ability to appeal). When the arbitration agreement states that the arbitration is binding, the decision is final, can be enforced by a court, and can only be appealed on very narrow grounds. https://www.americanbar.org/groups/dispute_resolution/resources/DisputeResolutionProcesses/arbitration/

Importantly, you are entitled to the same rights and damages at arbitration as you would in a lawsuit filed in a court. Arbitration does not protect the employer from claims for violation of the law. Arbitration is favored by some defendants because it can provide a more streamlined and quicker resolution of the case.

Will mandatory arbitration hurt my claim?

Arbitration should not hurt your claim as you have the same rights in arbitration as you do in court. Hall & Lampros attorneys have successfully recovered at arbitration in over 200 FLSA claims.

Can my employer dock my pay for walk-outs, breakage, cash register shortages, customers who leave without paying their bill?

A restaurant cannot dock a server’s pay for customers who leave without paying their bill if the dock in pay would result in the server earning less than minimum wages. Thus, a minimum wage server (either $7.25 or at $2.13 tipped wage) cannot be docked pay for customers leaving without paying their bill.

Where deductions for walkouts, breakage, or cash register shortages reduce the employee’s wages below minimum wage, such deductions are illegal. When an employer claims an FLSA 3(m) tip credit, the tipped employee is considered to have been paid only the minimum wage for all non-overtime hours worked in a tipped occupation and the employer may not take deductions for walkouts, cash register shortages, breakage, cost of uniforms, etc., because any such deduction would reduce the tipped employee’s wages below the minimum wage.

U.S. Dept. of Labor, Wage and Hour Division, “Fact Sheet #15: Tipped Employees Under the Fair Labor Standards Act (FLSA)” at 1.

“The purpose of barring employers from being able to apply deductions to such a tipped minimum wage arrangement is to ensure that employees who rely on tips to receive minimum wage actually receive at least the minimum wage. See 29 C.F.R. § 531.59(b).” Parks v. MRB, Inc., No. 1:14-CV-1996-LMM, 2015 WL 13298573, at *6 (N.D. Ga. Nov. 16, 2015) (holding it a violation of the FLSA where an employee’s pay was regularly docked for liquor shortage even when the employee was paid minimum wage, reasoning that such docking of the employee’s pay brought her hourly wage below minimum wage and was similar to that of a tipped employee).

The base wage of $2.13 must be paid “free and clear.” 29 C.F.R. § 531.35. No part of the employee’s wage may “kick[ ]-back directly or indirectly to the employer or to another person for the employer’s benefit….” 29 C.F.R. § 531.35. For example, if an employee must provide their own tools, there is a FLSA violation when the employee’s purchase of necessary tools “cuts into the minimum or overtime wages required to be paid him under the Act.” 29 C.F.R. § 531.35.

Moulton v. W.W.I., Inc., No. 1:18-CV-67-ALB, 2019 WL 3558032, at *4 (M.D. Ala. Aug. 5, 2019).

What is the Minimum Wage in my State?

State 2019 Min. Wage 2020 Min. Wage 2021 Min. Wage
Alabama $7.25 (Federal, no state minimum) $7.25 (Federal, no state minimum) $7.25 (Federal, no state minimum)
Alaska $9.89 $10.19 $10.34
Arizona $11.00 $12.00 $12.15
Arkansas $9.25 $10.00 $11.00
California $12.00* $13.00* $13.00*
Colorado $11.10 $12.00 $12.32
Connecticut $11.00 $11.00 ($12.00 effective 9/1/20) $12.00
Delaware $9.25 $9.25 $9.15
Washington D.C. $14.00 $15.00 $15.20
Florida $8.46 $8.56 $8.65
Georgia $5.15 (Employers subject to Fair Labor Standards Act must pay the $7.25 Federal minimum wage.) $5.15 (Employers subject to the Fair Labor Standards Act must pay the $7.25 Federal minimum wage) $5.15 (Employers subject to the Fair Labor Standards Act must pay the $7.25 Federal minimum wage)
Hawaii $10.10 $10.10 $10.10
Idaho $7.25 $7.25 $7.25
Illinois $8.25 $10.00 $11.00
Indiana $7.25 $7.25 $7.25
Iowa $7.25 $7.25 $7.25
Kansas $7.25 $7.25 $7.25
Kentucky $7.25 $7.25 $7.25
Louisiana $7.25 (Federal, no state minimum) $7.25 (Federal, no state minimum) $7.25 (Federal, no state minimum)
Maine $11.00 $12.00 $12.15
Maryland $10.10 $11.00 $11.75
Massachusetts $12.00 $12.75 $13.50
Michigan $9.45 $9.65 $9.65
Minnesota $9.86** $10.00** $10.08
Mississippi $7.25 (Federal, no state minimum) $7.25 (Federal, no state minimum) $7.25 (Federal, no state minimum)
Missouri $8.60 $9.45 $10.30
Montana $8.50 $8.65 $8.75
Nebraska $9.00 $9.00 $9.00
Nevada $7.25*** $8.00*** $9.00
New Hampshire $7.25 (Federal, no state minimum) $7.25 (Federal, no state minimum) $7.25
New Jersey $10.00 $11.00 $12.00
New Mexico $7.50 $9.00 $10.50
New York $11.10 $11.80**** (statewide) $12.50
North Carolina $7.25 $7.25 $7.25
North Dakota $7.25 $7.25 $7.25
Ohio $8.55 $8.70 $8.80
Oklahoma $7.25 $7.25 $7.25
Oregon $11.25**** $11.50**** $12.00
Pennsylvania $7.25 $7.25 $7.25
Rhode Island $10.50 $10.50 $11.50
South Carolina $7.25 (Federal, no state minimum) $7.25 (Federal, no state minimum) $7.25 (Federal, no state minimum)
South Dakota $9.10 $9.30 $9.45
Tennessee $7.25 (Federal, no state minimum) $7.25 (Federal, no state minimum) $7.25 (Federal, no state minimum)
Texas $7.25 $7.25 $7.25
Utah $7.25 $7.25 $7.25
Vermont $10.78 $10.96 $11.75
Virginia $7.25 $7.25 $9.50
Washington $12.00 $13.50 $13.69
West Virginia $8.75 $8.75 $8.75
Wisconsin $7.25 $7.25 $7.25
Wyoming $5.15 (Employers subject to Fair Labor Standards Act must pay the Federal minimum wage.) $5.15 (Employers subject to the Fair Labor Standards Act must pay the $7.25 Federal minimum wage) $7.25

https://www.dol.gov/agencies/whd/mw-consolidated

*$13.00 rate is for California employers with 26 or more employees. Employers in California with 25 or less employees have a minimum wage of $12.00 per hour.

**$10.00 rate is for large employers. Small employers have a minimum wage of $8.15 per hour.

***As of July 1, $8.00 rate is for Nevada employees who are offered health insurance. $9.00 rate is for Nevada employees who are not offered health insurance.

****Statewide minimum wages apply in areas that are not governed by a higher, local minimum wage ordinance. New York City and Portland Metro are examples of areas which have local minimum wage rates that exceed the statewide minimum.