The federal Fair Labor Standards Act (FLSA) is one of the oldest employment laws in the United States. Congress enacted the FLSA “in order to eliminate ‘labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.’ ” Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir. 1996) (quoting 29 U.S.C. §202(a) & (b)). As such, 29 U.S.C. §207 requires that employers pay time and a half for those hours that an employee works in excess of the standard forty-hour work week.

As simple as that statement may sound, the amount of litigation based on these words has increased significantly over the last fifteen years. The litigation has been in the form of class actions wherein a class of employees can opt into the lawsuit or single plaintiff cases brought by one employee. However, the claim is brought, employees usually allege that the employer has failed to pay overtime for hours worked or has taken some action that caused the employee’s hourly wage to fall below the statutory minimum. Employees have sought back pay because they were improperly classified as a salaried employee, improperly classified as an independent contractor or they were not paid for all the hours they worked. Sometimes, unfortunately, the employer failed to keep good records to prove otherwise.

Which Employers Are Covered?

Employers with annual revenue of $500,000 who engage in interstate commerce are covered by the FLSA. Interstate commerce includes making a phone call to order something online that will be shipped from out of state. As such, most employers are covered. Unlike some other employment laws, individuals may also be sued. The FLSA broadly defines employer as “any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.”[1]

Which Employees Are Covered by the Minimum Wage and Overtime Provisions?

The FLSA provides a host of exemptions to the minimum wage and maximum hour requirements. The exemptions “are to be construed narrowly” and the employer shoulders the burden of establishing that it is entitled to an exemption. The are several classes of employees that are exempt from the minimum wage or overtime provisions such as Executive, Administrative, Professional, Motor carrier, Health care workers, Public Safety professionals, and Computer professionals. Most employees apply the executive, administrative and professional exemption. These categories have specific definitions and requirements and must be properly applied.[2]  Employers should not guess at how to apply the exemptions or base the exemptions on job titles or whether the employee is salaried.

The consequences of improperly classifying a non-exempt employee as an exempt employee can be costly for an employer. If an employee is improperly classified as exempt and the employee successfully proves that they are non-exempt, the employer is liable for two years of back pay or three years if the employee establishes that the employer acted willfully and without regard for complying with the law.

What about Mobile Home Park Managers?

Managers of mobile home parks must be properly classified as exempt employees to avoid overtime violations. To make a determination about their status, there should be a clearly defined job description that specifies the employee’s primary duty. In other words, the employer must answer the question “Why does this position exist?” If the manager falls under one of the exemptions, the manager must be paid the required weekly minimum salary of $684 on a salaried, rather than hourly, basis. This means that the employee must be paid this amount regardless of the quality or quantity of their work.

Employers always have the ability to address performance issues for failing to perform job duties but pay cannot be reduced below the minimum. Deductions cannot be from this amount except for: 1) penalties imposed in good faith for safety infractions of major significance or 2) unpaid disciplinary suspensions for one or more full days imposed for violations of workplace conduct rules. Disciplinary deductions must be made pursuant to a written policy applicable to all employees. Even when exempt employees are sick, the ability to deduct from salary is limited to periods when 1) sick or disability benefits are exhausted or not yet accrued; 2) no work is performed during the work week, including the initial week of employment (partial week payment is permissible in the initial or terminal week of employment); 3) on unpaid leave pursuant to the Family Medical Leave Act.

On Site managers may be classified as non-exempt. Employers do not have to classify employees as exempt. Therefore, if onsite managers do not meet the test for an exempt employee, they should be classified as non-exempt and paid time and one half for all hours worked over 40 in a workweek.

Whether the employee is exempt or non-exempt, keeping track of the number hours worked is a good practice. Further, when employees submit their timesheets, there should be a signed statement on the timesheet that the employee has submitted all of the hours they worked. Your pay stubs or some document should advise employees of the name of the person they should contact if they believe they have not been paid for all hours worked.

What Are Hours Worked?

Just so that your definition of work is the same as that of the FLSA, here is how the FLSA defines “hours worked:” time spent that an employee is permitted to work for the benefit of the employer. If that sounds like a mouthful, it is! In essence, work is anything the employee does that benefits the employer. The trek through the FLSA should be navigated carefully. Contacting an experienced employment lawyer to lead you through the process of auditing your pay practices is a wise decision and could save you money in the long run. Seeking and following the advice of an attorney also provides employers with a defense against a willful violation of the FLSA.

This article was originally published in the Florida Manufactured Housing Association Member News, Volume 2, Issue 10 in October 2021 as a guest column for the “General Counsel’s Comments” column. It is published here with permission from FMHA.

[1] 29 USC s. 203(d)

[2] Employers should visit https://www.dol.gov/agencies/whd to learn about the requirements for each exemption they intend to apply or consult an experienced employment lawyer for guidance.