Defining the Employer
An employer is defined in the Fair Labor Standards Act 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.” Furthermore, the Act broadly defines “employ” as to “suffer or permit to work.”
In most cases, under “enterprise coverage,” all of an employer’s employees are covered under the Act. Specifically, if an employer has 2 or more employees “engaged in commerce or in the production of goods for commerce” and is an enterprise whose “gross volume of sales made or business done is not less than $500,000” or is a hospital or public agency, all of its employees will likely be covered by the Act. “Mom and Pop” businesses i.e. employers whose only regular employees are the owner(s) or the “parent, spouse, child or other member of the immediate family of such owner” are exempt from coverage under the Act.
Even if an employee is not employed by a covered enterprise, he or she may still be individually covered by the Act. Specifically, individual employees are covered under FLSA in each week in which they are individually engaged in interstate commerce, produce goods for commerce, or engage in activities that are both closely related and directly essential to the production of goods for commerce. However, independent contractors, trainees, and volunteers are not covered by the Fair Labor Standards Act.
Employers in numerous industries are subject to the requirements of the Act. Here are a few examples:
- Hospitals and health care facilities
- Construction businesses
- Some Retail and Service Industry Employers
- Restaurants
- Grocery Stores
- Food Preparation Industry
Federal and State Government Employers
There are some distinct rules which apply to government workers. Generally, individuals employed by public agencies are covered by the Act. However, a few classes of public agency employees are excluded from coverage. Those individuals are:
- Elected public officials
- Immediate advisors of elected public officials
- Individuals appointed by elected public officials
- Employees of legislative branches of state and local governments
- State and local government volunteers
Furthermore, the Act permits state and local governments to agree with their employees to reward overtime work with compensatory time off (aka “comp time”) rather than overtime wages. Such an agreement must be entered into prior to the overtime work being performed and there are limits to the amount of comp time that can be accrued.
Other standard FLSA exemptions, such as the “white collar exemption” (which exempts salaried employees who work in an executive, administrative, or professional capacity, from FLSA coverage) also apply to employees of federal and state governments. Finally, there are various special provisions of the Act which apply to employees who engage in “fire protection” and “law enforcement” activities.
Contact Us
To learn more about your rights as an employee under the Fair Labor Standards Act, contact the overtime attorneys of Tycko & Zavareei LLP at 202-973-0900.
