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Issue: 75 - Mar 16, 2015
Wage and Hour Basics: Part One
By: Marsha L. Heinke, CPA
Marsha L. Heinke, CPA, Inc

Questions often arise for employers such as, “What constitutes paid work time?” and “How much do we need to pay employees?” The Fair Labor Standards Act of 1938 (FLSA) provides the baseline guidance, yet can be confusing, too. In this three part series, we discuss some more common questions regarding fair wages and payment of work time. 

What is the purpose of the FLSA?

The FLSA was originally passed into law to help create more jobs. Employers would often use the same workers for excessive hours instead of hiring additional workers, leading to a limited number of available jobs in the 1930’s. The scope of the FLSA can be summarized by three central issues: child labor, minimum wage, and overtime pay.

What are the restrictions for work hours for minors?

In most cases, specific restrictions apply to employees who are minors (under the age of 18) that employers must follow. If an employee is 14 or 15 years old, he or she is able to work after school in a variety of different roles. Hours must be limited to no more than three hours on a school day and a total of 18 hours in a school week. For weeks when school is not in session, the employee may work a regular 8 hour day for no more than a total of 40 hours in a nonschool week. Employees who are 16 or 17 years old do not have restrictions on the number of hours they are able to work. Some states require minor workers to obtain documentation providing employment eligibility. State requirements should be checked prior to hiring a minor worker.

Are there any jobs that minors are not able to perform?

While minors can work in a variety of different industries, manufacturing and mining are not acceptable jobs for minors under the age of 16. Any employee under the age of 18 is prohibited from working a hazardous job. Visit the Department of Labor website at for more information about the types of jobs that are considered hazardous. 

What is the rule regarding minimum wage when the federal and state minimum wage is different? Which one do we follow? 

If the minimum wage of the state in which the business resides is greater than the federal minimum wage, the employer must follow the minimum wage established by the state. Otherwise, the federal minimum wage is the minimum rate an employee can be paid.

How is a workweek defined and at what point must it be established?

An employer must provide a defined workweek that includes no more than seven consecutive 24-hour periods for a total of 168 consecutive hours. This could run from Sunday to Saturday, Monday to Sunday or any other combination of days that meet the requirement above. Workweeks must be established and consistent. An employer cannot change the parameters to avoid paying overtime.

What is the difference between an Exempt and Nonexempt worker as it relates to overtime?

While the debate over whether or not an employee is actually exempt or nonexempt is quite complex, once an employee’s status is determined, the application is quite simple. In most cases, if an employee is exempt, he or she is not eligible to receive overtime pay, and likewise, if an employee is nonexempt, he or she is eligible to receive overtime pay. We will go into more detail of determining exempt versus nonexempt status in the next article in this series.

How do I know whether or not I have to pay my employee overtime?

If an employee works in the private sector, the employee must be paid overtime for any hours worked in a given workweek over 40 hours. Note that the FLSA does not require the payment of overtime wages for over 8 hours worked in a given day, but state law may be more restrictive and require overtime payment. Under federal law, an employer can require an employee to work as many hours in a day as it desires, as long as overtime rates are paid when hours worked exceed 40 hours in a week. Overtime generally consists of pay equal to or greater than one and a half times an employee’s regular hourly wage.

What about hours that I did not approve for my employee to work? Do I still have to pay overtime if he or she worked these additional hours of his or her own free will?

Whether an employer approved the overtime or not, an employee who works over 40 hours in a workweek must be paid overtime. The FLSA refers to this type of situation as “Suffered or Permitted” to work. In short, if the employee is either made to or allowed to conduct any services on behalf of the employer, the hours must be compensated; when the weekly hours reach the overtime threshold, overtime must be paid to the employee. This law does not stop an employer from disciplining an employee who works over their allotted 40 hour workweek; however, the disciplinary action cannot include non-payment of overtime wages.

Do employees earn overtime during a week where holiday pay was given?

If an employee receives a holiday off with pay, the number of hours paid to the employee on the holiday is not calculated into the 40 hour workweek. However, if the employee worked on the holiday, any hours worked on the holiday are included in the 40 hour workweek. If the employee works over 40 hours in a holiday week, he or she is eligible and must be paid overtime.

What laws does the FLSA enforce in regard to break and meal periods?

While the FLSA does not require an employer to provide meal or break times, some state laws do. Be sure to check the rules in your state to ensure you are following them properly. In addition, if an employer does give an employee a non-paid meal break, the break must be no less than 30 minutes, and during the mealtime the employee must be completely relieved of his or her work duties. For example, if a receptionist eats her lunch while answering the phone, she must be paid for her meal break.


Remember that the role of the FLSA is to define hours in which employees can work and how they should be compensated. When in doubt, use caution and speak with your practice attorney before enacting policies that might contradict the FLSA or state labor laws. In the remaining two articles, we will answer more Wage and Hour questions regarding travel pay requirements, training and testing pay, determining Exempt and Nonexempt status, and the use of Independent Contractors.


The information contained in this article is provided by Marsha L. Heinke, CPA, Inc. and is intended for informational purposes only. It does not constitute legal advice. Please obtain your practice’s attorney review and professional opinion for questions regarding wage and hour law.