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What is the Fair Labor Standards Act?

The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and in Federal, State, and local governments.  Covered nonexempt workers are entitled to a minimum wage of not less than $5.85 per hour effective July 24, 2007.  Overtime pay at a rate of not less than one and one-half times their regular rates of pay is required after 40 hours of work in a workweek.

What are the exemptions to the FLSA?

 Some employees are exempt from the overtime pay provisions, some from both the minimum wage and overtime pay provisions and some from the child labor provisions of the Fair Labor Standards Act (FLSA).  Exemptions are narrowly construed against the employer asserting them.  The ultimate burden of supporting the actual application of an exemption rests on the employer.

Following is a list of some of the more commonly used exemptions.  This list is not intended to be all-inclusive.

  • Commissioned sales employees of retail or service establishments are exempt from overtime if more than half of the employee’s earnings come from commissions and the employee averages at least one and one-half times the minimum wage for each hour worked.
  • Computer professionals: Section 13(a)(17) of the FLSA provides that certain computer professionals paid at least $27.63 per hour are exempt from the overtime provisions of the FLSA.
  • Drivers, driver’s helpers, loaders and mechanics are exempt from the overtime pay provisions of the FLSA if employed by a motor carrier, and if the employee’s duties affect the safety of operation of the vehicles in transportation of passengers or property in interstate or foreign commerce.
  • Farm workers employed on small farms are exempt from both the minimum wage and overtime pay provisions of the FLSA. Young workers employed on small farms, with parental consent, are also exempt from the child labor provisions of the FLSA.
  • Salesmen, partsmen and mechanics employed by automobile dealerships are exempt from the overtime pay provisions of the FLSA.
  • Seasonal and recreational establishments: Employees employed by certain seasonal and recreational establishments are exempt from both the minimum wage and overtime pay provisions of the FLSA.
  • Executive, administrative, professional and outside sales employees: (as defined in Department of Labor regulations) and who are paid on a salary basis are exempt from both the minimum wage and overtime provisions of the FLSA.

What is the Uniformed Services Employment and Reemployment Rights Act?

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) was signed into law on October 13, 1994. USERRA clarifies and strengthens the Veterans’ Reemployment Rights (VRR) Statute.  USERRA is intended to minimize the disadvantages to an individual that occur when that person needs to be absent from his or her civilian employment to serve in this country’s uniformed services.  USERRA makes major improvements in protecting service member rights and benefits by clarifying the law and improving enforcement mechanisms.  It also provides employees with Department of Labor assistance in processing claims.  Specifically, USERRA expands the cumulative length of time that an individual may be absent from work for uniformed services duty and retain reemployment rights.

What is Title VII of the Civil Rights Act of 1964?

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq., prohibits discrimination in employment on the basis of race, sex, national origin and religion.  It also is unlawful under the Act for an employer to take retaliatory action against any individual for opposing employment practices made unlawful by Title VII or for filing a discrimination charge or for testifying or assisting or participating in an investigation, proceeding, or hearing under Title VII.

Who is responsible for enforcing Title VII of the Civil Rights Act of 1964?

The Equal Employment Opportunity Commission (EEOC) enforces Title VII against private employers and the Employment Litigation Section, Civil Rights Division, U.S. Department of Justice enforces  Title VII against state and local government employers.  Individuals who believe that they have been victims by any employer of discrimination prohibited by Title VII must file a charge of discrimination with the EEOC in order to protect their rights.  The EEOC is responsible for investigating individual charges of discrimination alleging a violation of Title VII.

How is a case investigated and prosecuted by the EEOC? What are the various steps involved?

  • Complaint is filed by an employee with the EEOC.  It also can be filed by the EEOC on behalf of an employee or employees.   The complaint must be filed within 180 days of the violation.  Some states have state agencies that can be used rather than the EEOC.  Mississippi does not have such an agency.
  • Next, the employer is notified and given the chance to respond.  Documentary information is requested by the EEOC.  Technically, you can refuse to cooperate with the EEOC and not file an answer or submit the documents.  Failure to answer would result in the EEOC accepting the employee’s side of the story.  Failure to produce the documents could result in a subpoena from a federal court to force you to turn over the documents.  At the very least you would have the EEOC mad at you.
  • EEOC has 180 days to process and investigate the charge.  They can continue to process and investigate the charge after 180 days, but the charging party has the right to file a lawsuit on his own if he chooses to and that will end the EEOC’s involvement.  Before he files suit, he must receive a right to sue notice from the EEOC to the effect that the 180 day period has expired.  Suit must be filed by the employee within 90 days of receiving the right to sue notice or suit will be barred.  Courts strictly follow this 90 day “statute of limitations.”
  • Assuming that the EEOC finishes its investigation, it will issue either a cause or no cause finding.  A cause finding means that the EEOC has reason to believe that unlawful discrimination has taken place.  If the employer is not willing to settle the charge with an agreement called a conciliation agreement, the case will be forwarded to the district office for examination by staff attorneys to determine if the EEOC wants to bring suit on the employee’s behalf.  If the EEOC decides not to bring suit, a notice of right to sue is issued.  If there is a no cause finding, then a notice of right to sue is issued to the employee.  The employee then has 90 days to file suit.
  • Throughout the whole process, the EEOC acts as a mediator between the employer and charging party and tries to settle the charge.
  • If the EEOC, after investigating a charge of employment discrimination filed against a state or local government employer under Title VII, or the Americans with Disabilities Act, determines that there is reasonable cause to believe a violation of the law has occurred and conciliation efforts are unsuccessful, the EEOC will then refer the charge to the Department of Justice.  The Department of Justice will either initiate litigation on the charge or issue a notice of right to sue to the charging party, which entitles the charging party to file his or her own lawsuit in court within 90 days of receipt.

What is Title I of the Americans with Disabilities Act?

Title I of the Americans with Disabilities Act of 1990 (the “ADA”), as amended, prohibits discrimination in employment against a qualified individual with a disability because of the disability.  It also is unlawful under the Act for an employer to take retaliatory action against any individual for opposing employment practices made unlawful by the ADA or for filing a discrimination charge or for testifying or assisting or participating in an investigation, proceeding, or hearing under the ADA. Title I of the ADA designates the EEOC as the federal agency primarily responsible for investigating individual charges of discrimination under the Act.

What is the Age Discrimination In Employment Act?

The Age Discrimination in Employment Act of 1967, as amended, (ADEA), prohibits discrimination in employment on the basis of age with respect to individuals who are 40 years of age or older.  Congress has designated the EEOC as the federal agency responsible for investigating individual charges of discrimination under the ADEA.  If you believe that you have been discriminated against in violation of the ADEA, you should contact the EEOC to find out

What is the Americans with Disabilities Act (ADA)?

The Americans with Disabilities Act (ADA) became effective July 26, 1992.  Title I of the ADA prohibits employment discrimination against any qualified individual with a disability.  Title II concerns public services provided by State and local governments, and transit services provided by public agencies.  Title III concerns public accommodations.  Title I, prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, job assignments, pay, benefits, job training, and other employment practices.  This part of the law also requires that employers and other specified persons and organizations provide reasonable accommodation for a known disability of a qualified applicant or employee if it would not impose an “undue hardship” on the operations of the employer’s business.  The Equal Employment Opportunity Commission (EEOC) has primary responsibility for enforcing the employment-related portions of the ADA.

What can I do if I think my workplace is unsafe?

If you believe working conditions are unsafe or unhealthful, you should bring the conditions to your employer’s attention, if possible.  Your employer may want to contact OSHA or your state consultation service in order to gather information about how to improve working conditions.

You may file a complaint with the Occupational Safety and Health Administration (OSHA) concerning a hazardous working condition at any time.  However, you should not leave the worksite merely because you have filed a complaint.  You may have a legal right to refuse to work in a situation in which you would be exposed to the hazard if the condition clearly presents a risk of death or serious physical harm, there is not sufficient time for OSHA to inspect, and, where possible, you have brought the condition to the attention of your employer.


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