Fair Labor Standards Act of 1938, 29 USC Section 201 et seq.; 29 CFR 510 - 794), as amended and reissued May 2011. Published by the Department of Labor at http://www.dol.gov/whd/regs/statutes/FairLaborStandAct.pdf.
Code of Federal Regulations, Title 29 - Labor, Part 520 - Employment under Special Certificate of Messengers, Learners and Apprentices and Part 531 - Wage Payments under the Fair Labor Standards Act of 1938, current as at 5 July 2012.
Employee means any individual employed by an employer. The definition also expands upon who is defined as employed by a public agency; states that individuals employed by an employer engaged in agriculture who are the parent, spouse, child or other member of the employers immediate family are excluded; and specifies the conditions in which volunteers performing services for a public agency may be excluded.
Includes 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 labour organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labour organization.
“Wage” paid to any employee includes the reasonable cost, as determined by the Administrator, to the employer of furnishing such employee with board, lodging, or other facilities, if such board, lodging, or other facilities are customarily furnished by such employer to his employees: Provided, That the cost of board, lodging, or other facilities shall not be included as a part of the wage paid to any employee to the extent it is excluded therefrom under the terms of a bona fide collective bargaining agreement applicable to the particular employee: Provided further, That the Secretary is authorized to determine the fair value of such board, lodging, or other facilities for defined classes of employees and in defined areas, based on average cost to the employer or to groups of employers similarly situated, or average value to groups of employees, or other appropriate measures of fair value. Such evaluations, where applicable and pertinent, shall be used in lieu of actual measure of cost in determining the wage paid to any employee. In determining the wage an employer is required to pay a tipped employee, the amount paid such employee by the employee’s employer shall be an amount equal to— (1) the cash wage paid such employee which for purposes of such determination shall be not less than the cash wage required to be paid such an employee on August 20, 1996; and (2) an additional amount on account of the tips received by such employee which amount is equal to the difference between the wage specified in paragraph (1) and the wage in effect under section 206(a)(1) of the Fair Labor Standards Act. The additional amount on account of tips may not exceed the value of the tips actually received by an employee. The preceding 2 sentences shall not apply with respect to any tipped employee unless such employee has been informed by the employer of the provisions of this subsection, and all tips received by such employee have been retained by the employee, except that this subsection shall not be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips.
The government sets the federal minimum wage rate pursuant to the Fair Labor Standards Act.
The Secretary of Labor shall submit a biennial report to Congress containing contain an evaluation and appraisal by the Secretary of the minimum wages and overtime coverage established by the Fair Labor Standards Act, together with his recommendations to the Congress. The minimum wage is then set by s206 of the Fair Labor Standards Act.
Individual States may implement State-specific minimum wage rates that are higher than the federal minimum.
Minimum wage set through decentralized collective bargaining
Wages may be set in collective agreements, however, employees who are not exempt from the provisions of the Fair Labor Standards Act concerning the national minimum wage rate, may not agree to a rate that is lower than the national rate.
National Labor Relations Act of 1935 s.158 (d) Fair Labor Standards Act 1938 (as amended) s.206(a)
Cost of living
In making his or her evaluation and appraisal for the purposes of reporting to Congress, the Secretary shall take into consideration any changes which may have occurred in the cost of living.
The federal minimum wage rate applies to: · Employees of enterprises that have annual gross volume of sales or business done of at least $500,000 and employees engaged in interstate commerce or in the production of goods for interstate commerce; · Government agencies; · Employees of hospitals or institutions primarily engaged in the care of the sick, the aged, or the mentally ill or defective who reside on the premises; schools for children who have disabilities; or preschools, elementary or secondary schools, or institutions of higher education are covered regardless of the annual gross sales of the employer.
The minimum wage does not apply to executive, administrative, or professional employees, or outside salesmen; employees of certain seasonal amusement or recreational establishments, organized camps, or religious or non-profit educational conference centers that do not operate for more than seven months per year; any employee employed in the catching, taking, propagating, harvesting, cultivating or farming fish products; certain agricultural employees including those employed on small farms not using more than 500 man-days of agricultural labor in any preceding calendar quarter, certain hand-harvest laborers customarily paid on a piece-rate basis, and those principally engaged in the range production of livestock.
It also does not apply to employees employed in the publication of certain small newspapers; switchboard operators with not more than 750 stations; seamen employed on foreign vessels; any employee employed on a casual basis in domestic service; certain criminal investigators; computer system analysts, computer programmer or software engineers; newspaper deliverers; home workers engaged in making wreaths; and employees performing their services overseas.
Fair Labor Standards Act 1938 (as amended) s.213
Specific minimum wage rates
» Specific minimum wage by occupation
» Specific minimum wage by sector
» Specific minimum wage by region
Many States have minimum wage laws providing minimum wage rates that are higher than the federal level, including: Alaska; California; Colorado; Connecticut; Delaware; District of Columbia; Illinois; Maine; Massachusetts; Nevada; New Mexico; Ohio; Oregon; Rhode Island; Vermont; Washington.
» Minimum wage levels for specific categories of workers
An employer may pay learners, student learners, apprentices and messengers, wages lower than the federal minimum wage rate subject to the limitations set by the Secretary of Labor and in accordance with special certificates issued pursuant to regulations implemented.
For learners and messengers this rate may not be lower than 95% of the federal minimum wage rate; not less than 75% for student-learners; and for apprentices, not less than the wage rate specified by the apprenticeship program.
Fair Labor Standards Act 1938 (as amended) s.214 (a) Code of Federal Regulations, Title 29 - Labor, Parts 520 and 531 s.520
Remarks: Apprentice shall mean a worker, at least sixteen years of age unless a higher minimum age standard is otherwise fixed by law, who is employed to learn a skilled trade through a registered apprenticeship program. Code of Federal Regulations:s.520.300
» Domestic Workers
The general minimum wage applies to domestic workers, except those who are employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary).
An employer may pay an employee who has not attained the age of 20 years a wage of not less than $4.25 per hour for the first 90 consecutive days following the initial employment of that employee.
Fair Labor Standards Act 1938 (as amended) s.206 (g) Code of Federal Regulations, Title 29 - Labor, Parts 520 and 531 s.520
The Secretary of Labour may provide for the employment of disabled workers at wages that are lower than the federal minimum wage. The Secretary of Labour may determine a special commensurate minimum wage rate for each disabled worker whose earning or productive capabilities are impaired by physical or mental disabilities. The rate is a proportion of the rate an individual whose earning or productive capacity is not impaired would receive performing the same type, quality and quantity of work in the vicinity the individual under certificate is employed.
Fair Labor Standards Act 1938 (as amended) s.214 (c) (1) Code of Federal Regulations, Title 29 - Labor, Parts 520 and 531 s.525.3(i)
» Piece-rate workers
Employees paid on a piece-rate basis are subject to the regular minimum wage except certain agricultural workers carrying out hand harvesting (See section: Excluded persons).
Fair Labor Standards Act 1938 (as amended) see s.213(a)
» Other categories
Full-time students The Secretary of Labour may issue employers a special certificate, allowing for the employment of a full-time student at a wage rate not less than 85% of the federal minimum or $1.60 per hour whichever is higher. An employer may not normally receive such certificates for more than six full-time students and the students must be hired on a part-time basis for no more than twenty hours per week.
Domestic workers A domestic worker must be paid at least the federal minimum wage rate provided that in any workweek the employee is employed in domestic service in one or more household(s) for more than 8 hours in the aggregate.
Tipped Employees An employer is obliged to pay a tipped employee $2.13 per hour if that amount plus the tips actually received equals at least the federal minimum wage rate, the employee retains all tips and the employee customarily and regularly receives more than $30 per month in tips. If an employees tips combined with the employers direct wages of at least $2.13 per hour do not equal the federal minimum monthly hourly wage, the employer must make up the difference.
Fair Labor Standards Act 1938 (as amended) s203(m), 203(t), 206(f), 214 (b) See further: See further:
The legislation does not stipulate how frequently the minimum wage should be adjusted.
Labour inspection is carried out by Wage and Hour Division Investigators who may: enter workplaces and inspect records; interview any employee; and investigate such facts, conditions, practices, or matters deemed necessary to determine whether the provisions of the Fair Labor Standards Act are complied with.
Any employer who willfully violates the provisions concerning minimum wage may be subject to imprisonment of not more than 6 months, in addition or as an alternative to the imposition of a fine. In addition, such violation renders the employer liable the employee or employees affected in the amount of their unpaid wages and in an additional amount as liquidated damages.
Fair Labor Standards Act 1938 (as amended) s216(a) and (b)
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