Employers

Not all employers are deemed to be “covered enterprise / employers” pursuant to the Fair Labor Standards Act.

Factors as to whether an employee is considered a covered enterprise include if the covered enterprise (1) has an annual gross volume of sales made or business done is not less than $500,000, (2) is engaged in the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, or the mentally ill who reside on the premises; a school for mentally or physically disabled or gifted children; a preschool, an elementary or secondary school, or an institution of higher education (whether operated for profit or not for profit); or (3) is an activity of a public agency.

Further, employees working for entities which are not deemed covered enterprises under the Fair Labor Standards Act may still be subjected to the FLSA provisions if they are engaged in interstate commerce, in the production of goods for interstate commerce, or closely related to any process or occupation which is essential to the production of goods for interstate commerce. Indeed, an employee is covered under the Fair Labor Standards Act in certain instances if the workers are engaged in interstate commerce, are producing goods for interstate commerce, or otherwise participating in the handling, selling, or working on goods or materials which have been moved in or produced for interstate commerce.

Common Categories of the Fair Labor Standards Act

The commonly-known main categories of the Fair Labor Standards Act are the following.

1.) Hours Worked

Pursuant to the Fair Labor Standards Act “hours worked” generally includes all of the time which an employee is required to be on the employer’s premises, on duty, or at a prescribed workplace.

2.) Minimum Wage

The federal minimum wage is $7.25. Employees covered by the Fair Labor Standards Act are entitled to the aforementioned minimum wage.

It is important to note that an employer cannot make deductions from wages to the extent that the deductions reduce the employee’s wages below the minimum rate required by the Fair Labor Standards Act. (Examples of such deductions include uniforms or tools).

The Fair Labor Standards Act also sets forth certain requirements for tipped employees. Tipped employees are defined as employees who are engaged in occupations wherein the employee customarily and regularly receives more than thirty dollars ($30) in tips. The employer can consider tips as part of the wages. However, an employer must pay the tipped employee at least $2.13 an hour in wages. Furthermore, for an employee to use the tip credit provisions under the FLSA, the employer must place the employee on advance notice of certain criteria and be able to establish certain requirements

3.) Overtime

Employees covered by the Fair Labor Standards Act are entitled to overtime. Overtime pay is pay at a rate not less than one and one-half times the regular rate of the employee’s pay. Overtime pay is required to be paid by the employer after the employee works after forty (40) hours of work in one work week.

Certain employees are exempt from the hourly wage requirements of the Fair Labor Standards Act. It is thus important to know if you are an employee who is covered by the mandatory overtime provisions of the Fair Labor Standards Act.

It is important to note that an employer cannot make deductions from wages to the extent that the deductions reduce the employee’s wages below the overtime due pursuant to the Fair Labor Standards Act.

4.) Recordkeeping

Employers must maintain appropriate recordkeeping. This means that employers must keep employee time and pay records. These records are to include wages, hours, and other requirements as specified by the Department of Labor regulations. With respect to an employee who is subject to the minimum wage provisions – or the minimum wage and overtime pay provisions – it is imperative to note that the following records must be kept: (1) the employee’s personal information, including the employee’s name, home address, occupation, sex, and birth date if the employee is under 18 years of age or younger; (2) the hour and day when workweek begins; (3) the total hours worked each workday and each workweek; (4) the total daily or weekly straight-time earnings; (5) the regular hourly pay rate for any week when overtime is worked; (6) the total overtime pay for the workweek; (7) any deductions from or additions to wages; (8) the total wages paid each pay period; and (9) the date of payment and pay period covered.

Further, employees must display an official poster which outlines the requirements of the Fair Labor Standards Act.

5.) Child Labor

The Fair Labor Standards Act also contains specific to child labor. This section provides certain requirements for employees under the age of eighteen (18).

The Fair Labor Standards Act child labor provisions include restrictions on the hours of work that a minor under the age of sixteen (16) can work. The Fair Labor Standards Act also lists certain hazardous occupations which are prohibited for minors to perform. This list of prohibited occupations declared to be too dangerous include both farm and non farm jobs.

Exempt Employees

It is important to know that certain employees are exempt from the minimum wage provisions of the Fair Labor Standards Act and/or the minimum wage and overtime requirements of the Fair Labor Standards Act.

Employment Law Attorneys at Battaglia, Ross, Dicus & McQuaid, P.A.

If you feel that your employer has violated the Fair Labor Standards Act – or if you are an employer and an employee is alleging a violation of the Fair Labor Standards Act – contact the employment law attorneys at Battaglia, Ross, Dicus & McQuaid, P.A. today. Our experienced employment lawyers can speak with you regarding your situation.

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Prerequisites to Class Representation

Claims and Defenses Maintainable

1. the prosecution of separate claims or defenses by or against individual members of the class would create a risk of either: (a) inconsistent or varying adjudications concerning individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or (b) adjudications concerning individual members of the class which would, as a practical matter, be dispositive of the interests of other members of the class who are not parties to the adjudications, or substantially impair or impede the ability of other members of the class who are not parties to the adjudications to protect their interests; or
2. the party opposing the class has acted or refused to act on grounds generally applicable to all the members of the class, thereby making final injunctive relief or declaratory relief concerning the class as a whole appropriate; or
3. the claim or defense is not maintainable under either of the two prongs referenced above, but the questions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the class predominate over any question of law or fact affecting only individual members of the class, and class representation is superior to other available methods for the fair and efficient adjudication of the controversy. The conclusions shall be derived from consideration of all relevant facts and circumstances, including (a) the respective interests of each member of the class in individually controlling the prosecution of separate claims or defenses, (b) the nature and extent of any pending litigation to which any member of the class is a party and in which any question of law or fact controverted in the subject action is to be adjudicated, (c) the desirability or undesirability of concentrating the litigation in the forum where the subject action is instituted, and (d) the difficulties likely to be encountered in the management of the claim or defense on behalf of a class.

Pleading Requirements

Determination of Class Representation; Notice; Judgment; Claim or Defense Maintained Partly on Behalf of a Class

Contact the Attorneys at Battaglia, Ross, Dicus & McQuaid, P.A.

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State Level: The Florida Commission on Human Relations

Local Level: The Pinellas County Office of Human Rights

Know Your Rights

Employment Law Attorneys at Battaglia, Ross, Dicus & McQuaid, P.A.

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Executive Order 2020-112: Phase One

1. Bars, pubs and nightclubs that derive more than fifty percent of gross revenue from the sale of alcoholic beverages shall continue to suspend the sale of alcoholic beverages for on-premises consumption.
2. Restaurants and food establishments licensed may allow on-premises consumption of food and beverage, so long as they adopt appropriate social distancing measures and limit their indoor occupancy to no more than 25 percent of their building occupancy. The Executive Order further provides that outdoor seating is permissible with appropriate social distancing. Appropriate social distancing requires maintaining a minimum of six feet between parties, only seating parties of ten or fewer people and keeping bar counters closed to seating.
3. Gyms and fitness centers shall remain closed.
4. The prohibition on vacation rentals still remains in effect.

Executive Order 20-112 also sets forth the following procedures applicable to other business services affected by previous Executive Orders:

1. In-store retail sales establishments may open storefronts if they operate at no more than twenty five percent of their building occupancy and abide by the safety guidelines issued by the Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health Administration (OSHA).
2. Museums and libraries may open at no more than twenty-five percent of their building occupancy provided that local public museums and local public libraries may operate only if permitted by local government, and any components of museums or libraries that have interactive functions or exhibits, including child play areas, remain closed.

1. The facility has the capacity to immediately convert additional facility-identified surgical and intensive care beds for treatment of COVID-19 patients in a surge capacity situation;
2. The facility has adequate personal protective equipment to complete all medical procedures and respond to COVID-19 treatment needs, without the facility seeking any additional federal or state assistance regarding personal protective equipment supplies;
3. The facility has not sought any additional federal, state, or local government assistance regarding personal protective equipment supplies since resuming elective procedures; and
4. The facility has not refused to provide support to and proactively engage with skilled nursing facilities, assisted living facilities and other long-term care residential provider.

Pinellas County Announcements

1. Concerts;
2. Music halls;
3. Bars;
4. Pubs;
5. Nightclubs;
6. Gyms;
7. Dance studios;
8. Yoga studios;
9. Amusement parks;
10. Waterparks;
11. Vacation rentals; and
12. personal services such as haircuts (which would include barbershops, hair spas, and hair salons);
13. personal services such as nail salons.

On May 1, 2020, Pinellas County also announced the following:

1. Restaurants and food establishments may reopen dining areas with a maximum patron occupancy of twenty-five percent of the building capacity. Outdoor seating is allowed without capacity percentage limitations. Bar counter seating must remain closed.
2. Many other nonessential retail businesses that have been closed to foot traffic may resume at limited capacity using social distancing principles.
3. In-store activities can resume to a maximum of twenty-five percent patron occupancy of the building capacity.
4. Pet grooming and car washes are specifically among the businesses that may operate starting Monday, May 4, 2020.
5. The County’s guidance strongly encourages residents to wear masks at indoor businesses like grocery and retail stores.
6. Museums and libraries may reopen to a patron occupancy of twenty-five percent of the stated building capacity, but interactive functions and exhibits and child play areas must stay closed. Cities may decide to keep museums and libraries closed.
7. Curbside pickup and delivery by businesses is allowed.

Ensure Compliance

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How to Determine If an Individual Is Liable Under the FLSA

• whether the individual has a significant ownership interest in the corporation;
• whether the individual has personal responsibility for the decision that led to the conduct which allegedly violated the statute;
• whether the individual had control of significant aspects of the corporation’s day-to-day operations, including the compensation of employees, or whether the individual is responsible for day-to-day management of the company;
• whether the individual has the responsibility and/or the power to maintain employment records;
• whether the individual is responsible for the operations of company;
• whether the individual is responsible for setting the pay policies or whether the employer is responsible for setting the pay practices;
• whether the individual is responsible for setting the wages of the employees and/or has the power to determine salaries, and
• any other signs of operational control that demonstrate control over significant aspects of the corporation’s day-today functions.

• the individual shareholder dominated and controlled the corporation to such an extent that the shareholders were alter egos of the corporation;
• the corporate form was used for an improper purpose; and
• the improper use of corporate form caused injury to the claimant.

What to Do If Faced With an Unpaid Wage Lawsuit

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