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Your Rights Minimum Wage

Outten & Golden LLP

Giskan Solotaroff Anderson & Stewart LLP

The minimum wage page explains what minimum wage is and how it might affect you. It details which employers and employees are covered under the Fair Labor Standards Act, as well as what minimum wage applies for probationary periods, minors, and training attendance. This page also explains how commissions, tips, and salary are effected by minimum wage laws, and which benefits employers can legally deduct from pay.

This page provides answers to the following questions:

1. What is the federal minimum wage?

2. Which federal law(s) cover payment of a minimum wage?

3. Who is covered by minimum wage laws?

4. Which employers are covered by the law?

5. If my state's minimum wage is higher than the federal minimum wage, what is my employer required to pay me?

6. Am I covered by my state's minimum wage law?

7. Can my employer pay me less for certain hours or average my pay?

8. I am paid a salary. Does the minimum wage law apply to me?

9. I am paid a commission. Does the minimum wage law apply to me?

10. I am paid a piece rate for the amount of goods I produce. Does the minimum wage law apply to me?

11. I am paid tips. Does the minimum wage law apply to me?

12. I was just hired, and my employer says I will receive a lower training wage until I pass probation in 90 days. Is this legal?

13. I am 16 years old and a full-time high school student. Does the minimum wage law apply to me?

14. I am 19 years old and a full-time college student. Does the minimum wage law apply to me?

15. My employer provides housing for me as part of my job benefits. Can the value of the housing be deducted from my wages?

16. Is my employer required to pay me for meal and break time?

17. Is my employer required to pay me for travel time?

18. Is my employer required to pay me for the time I spend attending a seminar away from the office?

19. Who enforces the law?

20. What are the remedies available to me?

21. How can I file a complaint / how long do I have to file?

22. More Information About the Minimum Wage

1. What is the federal minimum wage?

The federal minimum wage for covered nonexempt employees is $7.25 an hour, effective July 24, 2009. Many states also have minimum wage laws. If both state and federal minimum wage laws apply, the employee is entitled to whichever minimum wage is higher.

2. Which federal law(s) cover payment of a minimum wage?

The federal minimum wage provisions are contained in the. Fair Labor Standards Act (FLSA). Many states also have minimum wage laws. For more information, see DOL state minimum wage laws.

3. Who is covered by minimum wage laws?

More than eighty million American workers are protected (or "covered") by the FLSA. There are two ways in which an employee can be covered: "enterprise coverage" and "individual coverage." Either standard is sufficient for you to be covered and entitled to receive the minimum wage.

Enterprise coverage: Employees who work for certain businesses or organizations (or "enterprises") are covered by the FLSA. These enterprises, which must have at least two employees, are:

  • those which do at least $500,000 a year in business; or
  • hospitals, businesses providing medical or nursing care for residents, schools and preschools, and government agencies

Individual coverage: Even when there is no enterprise coverage, employees are protected by the FLSA if their work regularly involves them in commerce between states ("interstate commerce"). In its own words, the law covers individual workers who are "engaged in commerce or in the production of goods for 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.

Domestic service workers (such as housekeepers, full-time babysitters, chauffeurs and cooks) are normally covered by the law, as long as:

  • their cash wages from one employer are at least $1,000 in a calendar year (or the amount designated pursuant to an adjustment provision in the Internal Revenue Code), or
  • they work a total of more than 8 hours a week for one or more employers.

4. Which employers are covered by the law?

Employers whose enterprises are covered by the FLSA, or who have employees engaged in interstate commerce are required by the FLSA to pay the minimum wage. Unlike some other laws relating to employment, the standard does not hinge upon how many employees the employer has, but instead looks at the nature of the work performed by the enterprise and the employee to determine whether interstate commerce is involved. For more information, please see the previous question.

5. If my state's minimum wage is higher than the federal minimum wage, what is my employer required to pay me?

Where an employee is subject to both the state and federal minimum wage laws, the employee is entitled to higher of the two minimum wages. For more information on your state's minimum wage laws, see DOL state minimum wage laws.

6. Am I covered by my state's minimum wage law?

For more information on your state's minimum wage laws, see DOL state minimum wage laws. If you still have questions about your state's minimum wage law, then you may wish to contact the agency in your state which handles wage and hour/labor standards violations, listed on our site's state government agencies page.

7. Can my employer pay me less for certain hours or average my pay?

While your employer may pay you different rates for different kinds of work, the differing pay rates cannot be averaged to meet your employer's minimum wage obligations. For example, your employer could not pay you $6.50 for certain hours worked, even if for the rest of the hours worked, you were paid $8.00 per hour, and your average rate of pay was therefore higher than $7.25 per hour.

8. I am paid a salary. Does the minimum wage law apply to me?

Yes (assuming that you would otherwise be covered by the FLSA or equivalent state laws discussed above), which means that your average hourly earnings for the week must equal $7.25 or higher. An employer cannot create a salary rate that is so low that it makes it impossible for you to be paid the minimum wage when your weekly pay is averaged by the number of hours worked. For example, your employer could not pay you a salary of $275 per week, since based on a 40-hour work week, your salary must be at least $290 to equal $7.25 per hour.

9. I am paid a commission. Does the minimum wage law apply to me?

Yes (assuming that you would otherwise be covered by the FLSA or equivalent state laws discussed above), which means that your average hourly earnings for the week must equal $7.25 or higher. An employer cannot create a commission standard that is so low that it makes it impossible for you to be paid the minimum wage when your weekly pay is averaged by the number of hours worked. If your pay including commission is below the minimum wage, then your employer is required to make up the difference. For example, if during a slow period, your commission averages only $5.00 per hour you work, your employer must pay you an additional $2.25 per hour to make up the difference, so that you receive the $7.25 minimum wage.

10. I am paid a piece rate for the amount of goods I produce. Does the minimum wage law apply to me?

Yes (assuming that you would otherwise be covered by the FLSA or equivalent state laws discussed above), which means that your average hourly piece rate earnings for the week must equal $7.25 or higher. An employer cannot create a piece rate standard that is so low that it makes it impossible for you to be paid the minimum wage when your weekly pay is averaged by the number of hours worked. If your piece rate total is below the minimum wage, then your employer is required to make up the difference.

For example: You are paid .75 for each completed widget, and normally complete 10 widgets per hour (for an average wage of $7.50 per hour). However, for an entire work week, your production line has mechanical difficulties and staffing shortages that make it impossible for you to complete no more than 6 widgets per hour (for an average wage of $4.50 per hour). Under federal law, your employer must make up the difference and pay you an extra 2.75 per hour, so that you at least make the minimum wage of $7.25.

11. I am paid tips. Does the minimum wage law apply to me?

An employer of a tipped employee is only required to pay $2.13 an hour in direct wages, as long as all three of the following conditions are met:

  • if $2.13 plus the tips you receive equals at least the federal minimum wage of $7.25 per hour,
  • you retain all tips and
  • you customarily and regularly receives more than $30 a month in tips.

If your tips combined with wages directly from your employer of at least $2.13 an hour do not equal the federal minimum hourly wage, your employer must make up the difference. For example, if during a slow period, your tips average only $2 per hour you work, your employer must pay you an additional $3.12 per hour to make up the difference ($2/hour in tips, $5.25/hour in wages ($2.13 plus the additional $3.12, so that you receive the $7.25 minimum wage).

Some states have minimum wage laws specific to tipped employees. When an employee is subject to both the federal and state wage laws, the employee is entitled to the provisions of each law which provide the greater benefits.

12. I was just hired, and my employer says I will receive a lower training wage until I pass probation in 90 days. Is this legal?

Possibly, but only if you are under 20 years of age. A minimum wage of $4.25 per hour applies to young workers under the age of 20 during their first 90 consecutive calendar days of employment with an employer, as long as their work does not displace other workers. After 90 consecutive days of employment or the employee reaches 20 years of age, whichever comes first, the employee must receive a minimum wage of $7.25 per hour.

13. I am 16 years old and a full-time high school student. Does the minimum wage law apply to me?

A minimum wage of $4.25 per hour applies to young workers under the age of 20 during their first 90 consecutive calendar days of employment with an employer, as long as their work does not displace other workers. After 90 consecutive days of employment or the employee reaches 20 years of age, whichever comes first, the employee must receive a minimum wage of $7.25 per hour.

There is also a special program is for high school students at least 16 years old who are enrolled in vocational education (shop courses), which allows your employer to obtain a certificate from the Department of Labor allowing you to be paid not less than 75% of the minimum wage (currently $5.44) while you are enrolled in the vocational education program.

If neither of these special circumstances apply to you, then you are subject to the FLSA and required to be paid the minimum wage.

14. I am 19 years old and a full-time college student. Does the minimum wage law apply to me?

If you are a full-time student working in retail or service stores, agriculture, or colleges and universities, your employer may participate in the Full-Time Student Program. This program allows the employer to obtain a certificate from the Department of Labor which allows you to be paid not less than 85% of the minimum wage (currently $6.16 per hour). The certificate also limits the hours that you may work to 8 hours in a day and no more than 20 hours a week when school is in session and 40 hours when school is out, and requires the employer to follow all child labor laws. Once students graduate or leave school for good, they must be paid $7.25 per hour.

However, not all employers who hire students participate in this program or have the necessary certificate, so if you are being paid less than minimum wage, you may wish to inquire further to determine whether the employer is a formal participant in the program and in compliance with its provisions.

For more information on the Full-Time Student Program and whether your employer is a participant, contact the:

Department of Labor
Wage and Hour Western Region Office

525 S. Griffin Square, Suite 800
Dallas, TX 75202
(972) 850-2601.

15. My employer provides housing for me as part of my job benefits. Can the value of the housing be deducted from my wages?

Yes, as long as the value deducted is a reasonable estimate of its costs. Under the FLSA's definition of wages, an employer may include as wages the reasonable cost, as determined by the Secretary of Labor, 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. For example, you are provided with lodging worth an estimated $250 per month, based on other rents in the area. Your employer can count that $250 towards your rate of pay, but could not deduct $500 if that rate was not the reasonable value of the lodging provided.

16. Is my employer required to pay me for meal and break time?

The FLSA does not require that your employer give you meal breaks or rest breaks from your work, although some states do require rest and/or meal breaks.

However, if your employer does give you a rest period of short duration, usually 20 minutes or less, this must be counted as hours worked. If you take a longer break than the amount of time that was authorized, your employer is not required to count this as hours worked when your employer has expressly and unambiguously told you:

  • that the authorized break may only last for a specific length of time
  • that any extension of the break is contrary to the employer's rules, and
  • that any extension of the break will be punished.

Bona fide meal periods (typically 30 minutes or more) generally need not be compensated as work time, as long as you are completely relieved from duty for the purpose of eating regular meals. You are not considered relieved from duty if you are required to perform any work duties, whether active or inactive, while eating.

17. Is my employer required to pay me for travel time?

It depends on the type of travel involved.

  • Home To Work Travel: Ordinary home to work travel, where you travel from home before the regular workday and returns to your home at the end of the workday is considered ordinary home to work travel, which is not counted as work time for which you should be paid.
  • Home to Work on a Special One Day Assignment in Another City: This applies when you regularly works at a fixed location in one city and are given a special one day assignment in another city, but return home the same day. The time you spend traveling to and returning from the other city is work time, except that your employer may deduct/not count that time you would normally spend commuting to the regular work site. For example, you normally spend a half hour commuting each way to work. You are given a one-day assignment to work in a city one hour away, and work seven hours. Your employer should pay you for eight hours, the seven hours work and the additional one hour (one half hour each way) commuting time.
  • Travel That is All in the Day's Work: The time you spend in travel as part of your principal activity, such as travel from job site to job site during the workday, is work time and must be counted as hours worked.
  • Travel Away from Home Community: Travel that keeps you away from home overnight is travel away from home. Travel away from home is clearly work time when it cuts across the employee's workday. The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on nonworking days. However, the Department of Labor will not enforce payment for time spent in travel away from home outside of regular working hours that you spend as a passenger on an airplane, train, boat, bus, or automobile.

18. Is my employer required to pay me for the time I spend attending a seminar away from the office?

Yes, unless four specific criteria are met.

Attendance at lectures, meetings, training programs and similar activities need not be counted as working time only if:

  • it is outside normal hours
  • it is voluntary
  • not job related
  • and no other work is performed at the same time

19. Who enforces the law?

The FLSA is enforced by the Wage-Hour Division of the U.S. Department of Labor. Wage-Hour's enforcement of FLSA is carried out by investigators stationed across the U.S., who conduct investigations and gather data on wages, hours, and other employment conditions or practices, in order to determine whether an employer has complied with the law. Where violations are found, they also may recommend changes in employment practices to bring an employer into compliance.

It is a violation to fire or in any other manner discriminate against an employee for filing a complaint or for participating in a legal proceeding under FLSA.

Willful violations may be prosecuted criminally and the violator fined up to $10,000. A second conviction may result in imprisonment. Employers who willfully or repeatedly violate the minimum wage requirements are subject to a civil money penalty of up to $1,000 for each such violation.

The FLSA makes it illegal to ship goods in interstate commerce which were produced in violation of the minimum wage, overtime pay, child labor, or special minimum wage provisions.

To contact the Wage-Hour Division for further information and/or to report a potential FLSA minimum wage violation, call:

Toll Free: (866) 4USWAGE (866-487-9243)
TTY: (877) 889-5627
(available Monday-Friday 8 a.m. to 6 p.m. Eastern Time)

You may also contact your local WHD office.

If you need further information about your state's minimum wage law and/or wish to report a potential state minimum wage law violation, then you may wish to contact the agency in your state which handles wage and hour/labor standards violations, listed on our site's state government agencies page.

20. What are the remedies available to me?

There are several different methods under the FLSA for an employee to recover unpaid minimum and/or overtime wages; each method has different remedies.

  • Wage-Hour may supervise payment of back wages.
  • The Secretary of Labor may bring suit for back wages and an additional penalty, called "liquidated damages," which can be equal to the back pay award (essentially doubling the damages) if an employer willfully violated the statute.
  • An employee may file a private lawsuit for back pay and an equal amount as liquidated damages, plus attorney's fees and court costs. An employee may not bring a lawsuit if he or she has been paid back wages under the supervision of Wage-Hour or if the Secretary of Labor has already filed suit to recover the wages.
  • The Secretary of Labor may obtain an injunction to restrain any person from violating FLSA, including the unlawful withholding of proper minimum wage and overtime pay.

Your state minimum wage law may have different methods for recovery of unpaid wages, and different remedies to be awarded to those who succeed in proving a violation. For further information, please contact the agency in your state which handles wage and hour/labor standards violations, listed on our site's state government agencies page.

21. How can I file a complaint / how long do I have to file?

To file a complaint for unpaid wages under the FLSA, you may either go to the WHD, which may pursue a complaint on your behalf, or file your own lawsuit in court (which may require you to hire an attorney).

Do not delay in contacting the WHD or your state agency to file a claim. There are strict time limits in which charges of unpaid wages must be filed. To preserve your claim under federal law, you must file a lawsuit in court within 2 years of the violation for which you are claiming back wages, except in the case of an employer's willful violation, in which case a 3-year statute applies. However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible. Yet if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your claim with the state and federal administrative agencies.

Your state minimum wage law may have different deadlines for recovery of unpaid wages. For further information, select your state from the map below or from this list.


united states map Washington Oregon Idaho Montana North Dakota Nevada Utah Arizona California New Mexico Colorado Wyoming South Dakota Nebraska Kansas Texas Oklahoma Louisiana Mississippi Arkansas Alabama Tennessee Missouri Iowa Minnesota Wisconsin Michigan Illinois Indiana Florida Georgia South Carolina North Carolina Virginia Kentucky Ohio West Virginia Pennsylvania New York Vermont Massachusetts Rhode Island Connecticut New Jersey Delaware Maryland Maine New Hampshire District of Columbia Alaska Hawaii Puerto Rico

 

22. More Information About the Minimum Wage

U.S. Department of Labor Wage Page: The Department of Labor is the federal agency which administers a variety of Federal labor laws including those that guarantee workers' rights to a minimum hourly wage and overtime pay.

Resources: State Government Agencies: At our site's listing of state government agencies, you can find the contact information and web links to the agency in your state which enforces state wage and hour laws.

This page was updated on December 9, 2014



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