Labor and Employment

Wage & Hour FAQ for Employees

By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley
Learn the rules on minimum wage, overtime, pay docking, work hours, breaks, and more.

Q: What is the FLSA?

A: The Fair Labor Standards Act (FLSA) is a federal law that sets the standards for wages and hours for employees in all states, including:

    • the 40-hour workweek
    • the federal minimum wage
    • overtime, and
    • restrictions on child labor.

States are free to pass laws that are more favorable to employees than the FLSA, and many have. In that case, the employer must follow the more protective state law.

Q: Am I entitled to overtime?

A: It depends on whether you are an exempt employee and what your state law requires. Under the federal Fair Labor Standards Act (FLSA), employees are entitled to earn overtime unless they fit into an exception. (For example, outside salespeople, managerial employees, and certain professionals who are paid on a salary basis don't have to be paid overtime.) If you fit into an exception, you are an "exempt" employee; all other employees are called "nonexempt" employees and entitled to earn overtime. (To learn more, see Exempt or Nonexempt Employee: Am I Entitled to Overtime?)

However, the FLSA requires overtime pay only when nonexempt employees work more than 40 hours in a week. A few states, including California, have a daily overtime standard, but this is unusual. For example, in California, you are entitled to overtime pay when you work more than eight hours in a single day, even if you don’t work more than 40 hours in the week.

Q: When must overtime be paid?

A: If you work overtime, you must typically be paid for it on the regular payday for the pay period in which you worked the overtime. An exception may apply if it is too difficult for your employer to determine the amount due (for example, if you work extra hours on the last evening of the pay period and your employer submits your hours before finding out about your overtime work). Even so, your employer must pay you as soon as possible after the regular payday.

You are entitled to time and a half—that is, one-and-a-half times your regular hourly rate of pay—for every overtime hour you work.

Q: Can my employer refuse to pay me overtime?

A: It depends. As long as you are covered by the federal FLSA and/or your state's wage and hour law, you are entitled to overtime, unless an exception applies to you. The FLSA applies to employers in every state who engage in "interstate commerce." Courts have interpreted this term very broadly, so all but the smallest and most local employers are covered. And, even these employers may be covered by their state's overtime law.

If your employer is covered by the FLSA, you are entitled to overtime when you work more than 40 hours in a week unless you are an exempt employee—that is, unless you fit into an exception. If, for example, you are a professional employee, a manager, or an administrative employee, and you are paid on a salary basis, you might not be entitled to overtime.

If you are nonexempt (in other words, you are protected by the FLSA and entitled to earn overtime), your employer must pay you time-and-a-half when you work more than 40 hours in a week. Even if you didn't get permission to work overtime, you are entitled to be paid for it. However, your employer can discipline you for working unauthorized overtime hours. If you believe your employer hasn't paid you overtime you are owed, consider contacting your state's Department of Labor.

Q: Can my employer dock my salary based on hours worked?

A: If you are a nonexempt employee—that is, you don’t fit into a specific exemption under the FLSA—your employer must pay you only for the hours you work. If you take a few hours off for personal reasons, your employer need not pay you for that time (unless you have accrued paid vacation time under your company's policy).

If you are an exempt employee, you must generally be paid your full salary for every week in which you perform some work. Receiving the same pay each week regardless of your hours or productivity is part of what makes you an exempt salaried employee, who does not have to be paid overtime. If your employer docks your pay when your work hours or productivity fluctuate, it may not claim that you are an exempt employee (and therefore might owe you a substantial sum in unpaid overtime).

However, there are a few exceptions to this rule. If you are an exempt employee, your employer may legally pay you less than your full weekly salary in:

  • your first week of work (if not a complete week)
  • your last week of work (if not a complete week)
  • any week in which you took FMLA leave (if not made whole by accrued vacation or sick time offered by your employer)
  • any week in which you took an entire work day off for personal reasons other than sickness or disability (if not covered by accrued vacation or PTO offered by your employer)
  • any week in which you took an entire work day off for sickness or disability and you either were not yet eligible for or had exceeded your sick time under your company's policy, and
  • any week in which you served an unpaid disciplinary suspension for breaking workplace rules, as long as your employer has a written policy about such suspensions that applies to all employees.

Your employer can also deduct the following amounts:

  • a penalty imposed in good faith for a major safety violation, and
  • any amounts you received in fees for jury duty, witness testimony, or temporary military leave.

Q: Someone who was hired after me is making more money than I am. Isn't that illegal?

A: Probably not. An employer is free to pay employees according to their skills, experience, prior salary, or any other factor the employer deems relevant. Of course, most employers aren't eager to pay more than they have to for an employee. However, if an employer decides a particular employee is worth paying more to land, it is free to do so.

Employers may not discriminate in deciding what to pay employees, though. If a pay differential is based on a protected characteristic—such as race, religion, or sex—that is illegal. For example, it would be illegal for an employer to pay Caucasian employees more than Latino employees for the same work.

Q: I was promised a raise three months ago, but I haven't gotten it yet. What should I do?

A: Remind your manager of the promise and ask when you can expect your raise. In general, employees have no legal entitlement to raises. For example, your employer need not give annual raises based on the cost of living. This most likely means your employer isn't obligated to make good on its promise.

If you relied on your manager's promise to your detriment, you might have a legally enforceable contract for a raise. For example, let's say you received a job offer at another company for a higher salary. In response, your manager promised to raise your salary to that same amount if you agreed to stay. You turned down the other job offer but never received the raise. In a situation like this, most states would allow you to enforce your manager's promise in court.

Q: If I sue for unpaid wages under the FLSA, what might I get?

A: Damages available under the FLSA include back pay (the wages you should have been paid), attorneys’ fees and court costs, and "liquidated damages" in an amount equal to your entire back pay award. (For more information, see Liquidated Damages and Punitive Damages Under the FLSA.) You can ask for wages going back two years before you file your lawsuit, or three years if your employer willfully violated the law.

Q: If my state's minimum wage is different than the federal minimum wage, which do I get?

A: Employees are entitled to the highest minimum wage that applies to them, whether federal, state, or local. Some counties and cities have their own minimum wages, which tend to be higher than either the federal or state rate.

Q: I've been fired. When should I receive my final paycheck?

A: State law determines when final paychecks are due. Some states, such as California, require employers to pay you right away if you are fired. Other states allow employers to wait a few days or until the next scheduled payday; for example, the deadline is 72 hours in New Hampshire and the next regularly scheduled payday in New York. In some states, the time limits are different if you quit or were laid off. To find out your state’s rules, see our final paycheck chart.

Q: My compensation is primarily based on commissions, and layoffs are coming. Will I receive my commissions?

A: Believe it or not, the federal FLSA doesn't give employees the right to be paid commissions. As long as you are paid at least the minimum wage for all hours you worked and receive overtime payment due to you, failing to pay you commissions doesn't violate the FLSA.

However, that doesn't mean you have no rights. If you have a contract with your employer that covers commissions, your employer must obey the contract's terms. For example, if your contract says you will be paid all commissions upon termination, you are entitled to receive them. Or, if your contract says you will be paid all commissions earned during a quarter within one month after the quarter ends, you are entitled to payment on that schedule.

Some states protect your right to collect commissions, regardless of whether you have an employment contract promising them. In some states, such as California, employees are entitled to be paid for commissions they have earned just like any other compensation. Whether you have "earned" a commission may depend on your employer's policies. For example, some employers count commissions as earned when the customer signs a contract; others consider commissions as earned when the company has been paid by the customer. Take a look at your contract or any commission plan that your employer has. Contact your state labor department to find out more.

Q: Should I be paid for breaks or my lunch time?

A: The federal FLSA does not require employers to provide meal or rest breaks. However, if an employer chooses to offer a break, it must be paid if it lasts for 20 minutes or less. Longer breaks need not be paid. However, employees are entitled to be paid for all time spent working, which includes time designated as a "break" if they have to work through it. So if you eat your lunch while working or during a work meeting, you must be paid for that time.

Some states have laws requiring employers to provide employees with unpaid meal breaks if their shifts last a certain number of hours. And a small number of states, including California, require employers to give employees short paid rest breaks, usually of about ten to 15 minutes. In some states, you can receive a monetary penalty if your employer fails to give you the required breaks. Contact your state's labor department to find out whether you are entitled to breaks.

Q: Should I be paid for the time I travel for work?

A: It depends on when you travel and how long you are gone. Employees are not entitled to be paid for regular commuting time. However, if you travel for work, your employer might have to pay you for it. If your job requires travel during the work day (for example, because you drive to customer locations to repair computer equipment), you should be paid for all of that time.

If you travel out of town on business, the rules depend on how long you are gone:

  • For same-day travel, you are generally entitled to be paid for all of your time, including travel time, less your commute to and from the transit hub (from your home to the airport or train station, for example).
  • For a longer trip, you are entitled to be paid for all time you spend actually working and all travel time that takes place during your ordinary work hours.

Q: What is considered "work time" for which I can be paid?

A: Any activity an employee performs that benefits the employer is usually counted as work time. This includes activities such as staff meetings prior to opening, setting up and breaking down events, or work you do at home. Training also counts as work time unless the training is completely voluntary, held outside of normal work hours, not directly related to your job, and does not involve performing any work.

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