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By Robert Linkin | September 01, 2016

Complex Litigation

This is the first in a series of articles designed to explain the basics of the Fair Labor Standards Act (the “FLSA”), the rights of employees under the FLSA, and those areas which create a high risk of liability for employers, including issues of overtime pay and failure to report overtime correctly. This first article is designed to give a brief overview of the FLSA

The History of the FLSA

The Fair Standards Labor Act was signed into law on Saturday, June 25, 1938 by Franklin D. Roosevelt. At the time it was considered a landmark law in the progress of the United State’s social and economic development. The FLSA was approved by congress after more than 5 years of the Roosevelt administration’s efforts to reform the nation’s labor laws. In its final form, it eradicated oppressive child labor laws, set a minimum hourly wage, set a maximum workweek.

What is the FLSA?

The FLSA, 29 USC 8, protects “employees who are engaged in interstate commerce, or in the production of goods for commerce, or who are employed by an enterprise engaged in commerce or in the production of goods for commerce” unless the employee is subject to a limited number of exemptions from the law.

Who is Covered by the FLSA?

The FLSA covers “employees,” as opposed to “independent contractors” or “volunteers.” Importantly, employers will frequently misclassify their employees using one of these designations (most frequently calling their employees independent contractors). Such misclassification does not actually exempt the subject employees from the FLSA and is, in fact, unlawful. Certain other employees are considered to be exempt from the wage and hour requirements of the FLSA, and are frequently classified as professional, administrative, and executive employees. Just as with the label independent contractor, employees are frequently misclassified as exempt under one of these definitions. Again, the misclassification of an employee is unlawful and may give rise to a claim on the part of the employee (or a group of employees in what is referred to as a “collective action” which is similar to a class action). In an upcoming post, we will describe the factors that come into play when determining whether or not an employee has been misclassified.

What Does the FLSA Regulate?

Among other things, the FLSA, sets minimum standards regarding the pay and hours of employees working for an employer with more than $500,000 in income or sales for a single year. The FLSA regulates child labor standards, sets a minimum wage for employees, sets the maximum number of hours an employee can work without receiving overtime compensation, and provides a method of calculation of overtime wages. The FLSA also sets forth a strict enforcement mechanism to ensure that employers subject to the FLSA comply with its terms. An employer in violation of the FLSA may find itself the subject of an enforcement action brought by the Department of Labor. In addition, employees may also bring a private lawsuit, either on their own behalf, or on behalf of employees like themselves, seeking damages related to violations of the FLSA.

Do I have a Claim Under the FLSA

Whether or not you may have a claim under the FLSA against your employer will vary based upon the circumstances surrounding your and your co-worker’s employment. Here are a few questions you may want to think about:

  • Am I missclassified as an independent contractor?
  • Do I set my schedule and location of work, or does my employer ?
  • Do I exercise supervisory discretion as part of my job (i.e., hiring and firing of employees)?
  • Am I properly compensated for all of the time I work?
  • Do I regularly work in excess of 40 hours per week?
  • Do I receive overtime pay?
  • Does my employer pay a “day bonus” or some other form of pay intended to compensate me for overtime, without calculating overtime?
  • Am I forced to share tips with non-tipped employees?
  • Am I forced to perform work related tasks “off the clock?”

Over the next several weeks, we will discuss many of these questions and other topics related to the FLSA in detail.

If you have concerns regarding whether you have been properly compensated under the FLSA, including questions regarding your overtime pay, please contact Robert Linkin at Duggins Wren Mann & Romero to discuss your rights. Rob represents Plaintiffs in FLSA matters. Rob can be reached at (512) 744-9300 or at



Duggins Wren Mann & Romero, LLP, is located in Austin, Texas. If you would like to learn more about our Firm, our professionals, or our ability to serve you, please contact us.

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