Can My Employer Pay Federal Minimum Wage Instead of the State’s Minimum?
The Fair Labor Standards Act (FLSA) is the main federal law regarding fair pay. It contains several provisions regarding the rights of workers concerning pay issues. The FLSA requires that most workers be paid at least the federal minimum wage, now $7.25 an hour. It requires that certain employees receive one and a half times their hourly wage for hours worked over 40 in a standard week. It also prohibits employers from employing minor children in “oppressive child labor.”
It applies to employees of enterprises engaged in interstate commerce or employed by an enterprise engaged in commerce or the production of goods for commerce unless the employer can claim an exemption from coverage.
As mentioned above, federal and state fair pay rules sometimes overlap. However, an employer cannot choose which law to apply to themselves freely. They must go with the law that gives the employee the most benefit, which is state law in most states.
So, for example, many states have labor laws that set a state minimum wage higher than the federal minimum wage. Employers in these states must pay the higher state minimum wage.
If a person is employed in California, for example, where the local minimum wage is $13 per hour, then their employer is required to pay their California employees at least $13 per hour. This is true even if the federal minimum is only $7.25 per hour. Employers in California must comply with the California minimum wage law.
Some cities have adopted municipal minimum wage laws. For example, in San Francisco, California, the municipal minimum wage is $15 per hour. In Seattle, Washington, the municipal minimum wage is $15 per hour. Employers in these cities must pay their employees at least $15 per hour.
If a person works in a state with a minimum wage higher than the federal minimum wage and is not paid their state’s minimum wage, they would want to file a complaint with their state’s Department of Labor.
What Can I Do If My Employer Violates the Fair Labor Standards Act?
If a person’s employer is not paying them the minimum wage to which they are entitled by federal law, they can report this violation to the Wage and Hour Division of the federal Department of Labor (DOL).
If a person does not understand how to make a complaint to the DOL, they want to talk to an employment lawyer near them who can help them. Or if a person is not sure whether they should be paid a state minimum wage or the federal minimum wage, again, they would want to ask an employment lawyer.
All complaints made to the federal DOL are confidential. The name of the person who complains and the subject of their complaint is never disclosed to the employer. There is an exception when the DOL has the employee’s permission, and it is necessary to reveal the person’s identity.
A person can report their employer for such violations of the FLSA as failing to pay the minimum wage or pay them for all the hours they have worked. Employers who violate the minimum wage or overtime pay requirements of the FLSA can be made to pay a civil money fine of up to $1,000 for each such violation. If an employer violates the child labor provisions, they can be made to pay a civil money fine of up to $10,000 for each young worker who was employed in violation of the FLSA.
If an employer intentionally violates the FLSA, they may be charged with a criminal offense and, if convicted, fined up to $10,000. If they are convicted of a second offense, they might be imprisoned.
Can My Employer Make Me Clock Out Whenever I Take a Break?
Laws covering employee breaks vary widely from state to state. They generally depend on two factors:
- Length: The length of the break;
- Break Activities: What an employee does during the break.
Some states require employers to give an employee 10-minute paid breaks for every four hours that an employee works. If a state does not require paid breaks, then federal law applies. Under federal law, employers must pay workers for time spent on a break if the employee works through their break time. Or the employer has to pay for the time spent on break if it lasts less than 20 minutes.
In New Mexico, state law does not entitle employees to any breaks for meals or rest. The employee must be paid if employers permit rest breaks, and the break lasts for less than 20 minutes. However, if the break is for a meal and lasts for 30 or more minutes, it does not have to be paid. Some states have no laws regarding breaks, and others have laws with several explicit requirements.
Does My Employer Have to Pay Me Overtime?
Whether an employee is entitled to overtime pay also depends on whether an employee is covered by state law or the Fair Labor Standards Act (FLSA). If an employee works in a state with a law about overtime pay that is more generous than the federal standard, they are entitled to the overtime specified in state law. If not, they are entitled to the overtime specified in the FLSA.
The employee must also determine the following:
- Status: Whether they are an exempt employee, such as an executive, who is not entitled to overtime pay;
- The Type of Job/Position: Whether they are in a job exempt from overtime pay. These include independent contractors, volunteers who are not paid at all, and outside salespeople.
Employees whom the FLSA covers must be paid overtime of one and a half times their standard hourly wage for hours worked over 40 in a standard work week.
Can My Employer Pay Me Below Minimum Wage If I Receive Tips?
Typically, as mentioned, an employer must pay either a state or federal minimum wage. An employer can sometimes pay less than minimum wage if the employee consistently receives at least $30 in monthly tips. The amount must equal the minimum wage for each hour worked.
Under the FLSA, an employer has to pay each employee the minimum wage unless the employee customarily receives tips of more than $30 every month. If a tipped employee’s wages do not equal the minimum wage when tips are included, the employer must make up the difference so that the employee’s wages reach the minimum wage. Of course, the employee must be allowed to keep all of the tips they receive, individually or through a tip pool. Only the tips of employees who regularly receive tips can be put in a tip pool.
For example, as of September 2019, in Louisiana, the labor law has a different minimum wage for “tipped employees,” like waiters or servers. Louisiana’s minimum wage is $7.25, the same as the federal minimum. Employers are allowed to deduct up to $5.12 in tips per hour. This assumes that the employee earns $5.12 an hour in tips.
The amount an employer can deduct can be less than $5.12 an hour. The $5.12 tip credit deduction means employers can pay their tipped employees as little as $2.13 per hour because this amount, in addition to the $5.12 earned in tips, equals $7.25 an hour.
What If I Have Experienced Discrimination in My Pay?
Employers are prohibited from discriminating against employees concerning certain characteristics, specifically age, sex, gender, race, sexual preference, political affiliation, religion, and country of origin.
For instance, an employer cannot pay one employee less than others who do the same work simply based on the person’s age. They also cannot treat one group of employees better than another based on their gender. The federal Equal Pay Act of 1963 is an amendment to the FLSA that prohibits paying some employees lower wages than others strictly based on sex.
What If I Want to Sue My Employer for Discrimination Regarding Fair Pay?
If employees suspect they have been discriminated against, they will likely have to file a legal claim. This is usually done by filing a claim with the Equal Employment Opportunity Commission (EEOC). The EEOC will investigate the matter to determine if there has been discrimination. If it has, they will seek to provide a remedy for the person or persons affected by the discrimination.
If the EEOC cannot provide a suitable remedy, the employee or employees affected may be able to file a private civil lawsuit against their employer for damages or other remedies. However, they must usually file with the EEOC before they can file a private lawsuit.
Lastly, employers cannot retaliate against employees who have filed a claim against them for fair pay discrimination. For instance, they cannot fire an employee because they filed a complaint with the EEOC.
This is true even if the EEOC determines that no violation has occurred. Every employee has the right to file their claim without fear of being fired, lowered pay, or other consequences against them.
Do I Need the Help of a Lawyer with My Fair Pay Issue?
If you think that your employer is not paying you fairly, you want to consult an experienced employment lawyer near you. Your lawyer can explain what you should receive as pay, what hours you can be required to work, and what other rights you have in your workplace.
Even if you are unsure that your employer is violating the law, you can talk to your employment lawyer and find out your rights. You do not have to wonder if you are treated fairly at work. You can talk to your employment lawyer and get straight answers to your questions.
