FLSA Glossary & Terms

• Equal Pay Provisions
• Holiday, Vacation and Sick Time
• Principle Activities
• Recording Hours Worked
• Glossary of Terms in FLSA

Equal Pay Provisions

The Equal Pay Act of 1963 (EPA) is a critical federal labor law that requires employers to provide equal pay to men and women who perform substantially equal work in the same establishment. This law, which amended the Fair Labor Standards Act (FLSA), aims to eliminate wage disparities based on sex and ensures that pay decisions are based on the job — not the gender of the employee.

What Does the Equal Pay Act Require?

The EPA mandates that men and women receive equal pay for equal work. Jobs need not be identical, but they must be substantially equal in terms of skill, effort, responsibility, and working conditions. The comparison is based on job content, not job titles. The law applies to all forms of pay, including:

• Salary or wages
• Overtime pay
• Bonuses and stock options
• Profit-sharing and incentive plans
• Vacation and holiday pay
• Benefits like health insurance and retirement plans

What Does “Substantially Equal” Mean?

Under the EPA, jobs are considered substantially equal when they require similar levels of skill, effort, and responsibility, and are performed under similar working conditions within the same establishment. For example, if a male and female employee are both sales representatives handling similar accounts and sales quotas, but only one is paid a higher base salary, that may be a violation of the EPA.

Legal Exceptions

Pay differentials are permitted under the EPA if they are based on seniority, merit, quantity or quality of production, or any factor other than sex. However, employers must provide clear, job-related reasons for the pay differences. Simply stating that a man “negotiated better” or “has more charisma” will not suffice unless those characteristics relate directly to measurable job performance.

Equal Pay and Intersection with Title VII

In addition to the EPA, Title VII of the Civil Rights Act of 1964 prohibits wage discrimination based on sex, as well as race, color, national origin, and religion. Many plaintiffs pursue claims under both statutes to increase the scope of relief.  Employees do not have to file a complaint with the EEOC before going to court under the EPA (as they do under Title VII), though they may do so.

Real-World Example

Consider a case where a female marketing analyst discovers that her male counterpart — with the same title, years of experience, and duties — earns $10,000 more annually. If the employer cannot justify the pay disparity based on legitimate, job-related factors, it may be a violation of the EPA.

Common Myths About the Equal Pay Act

• Myth: Equal pay only applies to identical jobs.
• Fact: The law covers jobs that are substantially equal, even if the titles differ.
• Myth: If the pay gap isn’t intentional, it’s not illegal.
• Fact: Intent is not required — only the existence of unequal pay for equal work.

Holiday, Vacation, and Sick Time

The FLSA does not require employers to give their employees time off for holidays, vacations, or sick leave – either with or without pay.  If your employer allows you to take time off for a holiday, vacation, or because you are sick, the time off, even though you are paid for the time, is not hours worked and need not be included in the total hours worked for overtime purposes.

There is no federal law that would require employers to treat hours worked on a holiday as double time.  The time worked on holiday is hours worked just as any other day of the week.

Some federal laws have provisions concerning time off, including but not necessarily limited to:

• Family and Medical Leave Act (FMLA);
• Davis-Bacon and Related Acts (DBRA); and
• McNamara-O’Hara Service Contract Act (SCA).

Whether or not holidays, vacation or sick time must be granted to employees in a particular state is determined under the laws of the state.  The terms and conditions for the use of such time off is a private matter for agreement between an employer and the employee or the employee’s authorized representative.

Seeking medical attention during your working hours at the direction of your employer or on your employer’s premises for work related illness or injuries is hours worked.  For example, an employee who cuts her hand on a machine during working hours is directed by her employer to see the company nurse.  The time spent by the employee in waiting for and receiving medical attention form the company nurse is hours worked.

If your employer instructs you to get medical treatment, he or she is not required by the FLSA to provide transportation or accompany you.  However, the time required to travel to and from the place where medical attention is provided is hours worked, if this travel occurs during normal working hours, on a day when you are working.

If follow-up medical treatments are required during normal working hours on days when you are working, and your employer instructs you to get these treatments, the time spent in travel to and from, waiting for, and receiving the treatments would be hours worked.  However, if you and the doctor arranged the follow-up medical treatments, but your employer does not instruct you  to receive the treatments, the time would not be hours worked, even if your employer gave you permission to take off from work for the doctor’s appointment.

Principle Activities

The activities which you are employed to perform are your principal activities. These activities include any work of consequence performed for your employer–no matter where the work is performed. Your principal activities also include all activities which are an integral (or essential) part of your principal activities.

For example:

• When operating a lathe an employee will frequently, at the beginning of his or her workday, oil, grease or clean his or her machine, or install a new cutting tool. Such activities are an essential or integral part of the principal activity. Time spent in these activities would probably be hours worked.
• The time spent by a butcher sharpening knives and other tools is a part of the principal activity the butcher was hired to perform and would probably be hours worked.

Among the activities included as an essential part of a principal activity are those closely related activities that are necessary to perform the principal activity.

For example:

• If an employee in a chemical plant cannot perform his or her principal activities without putting on certain protective clothes, changing clothes on the employer’s premises at the beginning and end of the workday would be a necessary part of the employee’s principal activities. The time spent in changing clothes would probably be hours worked.
• Some employees, such as nurses and machine operators, who replace employees already on duty, are required to report to work before the beginning time of their shift. This time is frequently referred to as “reporting time.” The extra reporting time is for the purpose of being made aware of what is going on or receiving instructions to continue work already in progress. This time is probably hours worked.
• Note: there are special rules concerning early relief or reporting time for certain public sector employees. For more information about these special rules, please click on the underlined text.

If you have questions concerning the time you spend in preliminary or postliminary activities, please contact your local Wage and Hour District Office.

Recording Hours Worked

The FLSA requires employers to keep records on wages, hours and other items, as specified in Department of Labor regulations. Most of the information is of the kind generally maintained by employers in ordinary business practice and in compliance with other laws and regulations.

Records To Be Kept By Employers

Posting:  Employers must display an official poster outlining the provisions of the Act, available at no cost from local offices of the Wage and Hour Division and toll-free, by calling 1-866-4USWage (1-866-487-9243). This poster is also available electronically for downloading and printing at http://www.dol.gov/osbp/sbrefa/poster/main.htm.

What Records Are Required:  Every covered employer must keep certain records for each non-exempt worker. The Act requires no particular form for the records, but does require that the records include certain identifying information about the employee and data about the hours worked and the wages earned. The law requires this information to be accurate. The following is a listing of the basic records that an employer must maintain:

1. Employee’s full name and social security number.
2. Address, including zip code.
3. Birth date, if younger than 19.
4. Sex and occupation.
5. Time and day of week when employee’s workweek begins.
6. Hours worked each day.
7. Total hours worked each workweek.
8. Basis on which employee’s wages are paid (e.g., “$6 an hour”, “$220 a week”, “piecework”).
9. Regular hourly pay rate.
10. Total daily or weekly straight-time earnings.
11. Total overtime earnings for the workweek.
12. All additions to or deductions from the employee’s wages.
13. Total wages paid each pay period.
14. Date of payment and the pay period covered by the payment.

Employees on Fixed Schedules:  Many employees work on a fixed schedule from which they seldom vary. The employer may keep a record showing the exact schedule of daily and weekly hours and merely indicate that the worker did follow the schedule. When a worker is on a job for a longer or shorter period of time than the schedule shows, the employer must record the number of hours the worker actually worked, on an exception basis.

How Long Should Records Be Retained:  Each employer shall preserve for at least three years payroll records, collective bargaining agreements, sales and purchase records. Records on which wage computations are based should be retained for two years, i.e., time cards and piece work tickets, wage rate tables, work and time schedules, and records of additions to or deductions from wages. These records must be open for inspection by the Division’s representatives, who may ask the employer to make extensions, computations, or transcriptions. The records may be kept at the place of employment or in a central records office.

Insignificant Periods of Time

In recording working time under the FLSA, infrequent and insignificant periods of time beyond the scheduled working hours, which cannot as a practical matter be precisely recorded for payroll purposes, may be disregarded. The courts have held that such periods of time are de minimis (insignificant). This rule applies only where there are uncertain and indefinite periods of time involved, a few seconds or minutes in duration, and where the failure to count such time is justified by industrial realities. As noted below, an employer may not arbitrarily fail to count any part, however small, of working time that can be practically ascertained.

For example, after clocking in you were assigned to another job. You transported your tools to the new job area and then informed the foreman that you were ill and went home without doing any additional work or clocking out. The time spent transporting the tools would be considered de minimis or insignificant because it was limited to this one time only.

Your employer must count as hours worked any part, however small, of your fixed or regular working time or identifiable periods of time you are regularly required to spend on duties assigned to you.

This policy is one that must be applied with common sense recognizing the practical realities of recording identifiable work time. Setting an artificial time limit is not sufficient. One must consider how frequently the activity is performed and whether the activity is actually part of the work the employee was hired to do.

Use of Time Clocks

Employers may use any timekeeping method they choose. For example, they may use a time clock, have a timekeeper keep track of employee’s work hours, or tell their workers to write their own times on the records. Any timekeeping plan is acceptable as long as it is complete and accurate.

Time clocks are not required under the FLSA. In those cases where time clocks are used, if you voluntarily come in before your regular starting time or remain after quitting time, you do not have to be paid for such periods provided, of course, that you do not do any work during this time. Early or late punching of the clock is not hours worked when no work is done.

Likewise, minor differences between the clock records and actual hours worked cannot ordinarily be avoided since all employees cannot clock in or out at precisely the same time. Major discrepancies should be discouraged, however, since doubt is raised as to the accuracy of the record of actual hours worked.

In some industries, particularly where time clocks are used, there has been the practice for many years of recording the employee’s starting and stopping time to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour. Presumably, these arrangements average out so that the all of the time actually worked by the employee is properly counted and the employee is fully compensated for all the time actually worked. Such practices of recording working time are acceptable, provided they do not result, over a period of time, in failure to count as hours worked all the time the employees have actually worked.

Glossary of Terms in FLSA

Workweek – A workweek is a period of 168 hours during 7 consecutive 24-hour periods. It may begin on any day of the week and at any hour of the day established by the employer. Generally, for purposes of minimum wage and overtime payment, each workweek stands alone; there can be no averaging of 2 or more workweeks. Employee coverage, compliance with wage payment requirements, and the application of most exemptions are determined on a workweek basis.

Hours Worked – Covered employees must be paid for all hours worked in a workweek. In general, “hours worked” includes all time an employee must be on duty, or on the employer’s premises or at any other prescribed place of work. Also included is any additional time the employee is allowed (i.e., suffered or permitted) to work.

Salary Basis – Being paid on a “salary basis” means an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequent, basis.  The predetermined amount cannot be reduced because of variations in the quality or quantity of the employee’s work.

Fee Basis – If the employee is paid an agreed sum for a single job, regardless of the time required for its completion, the employee will be considered to be paid on a “fee basis.”  A fee payment is generally paid for a unique job, rather than for a series of jobs repeated a number of times and for which identical payments repeatedly are made.

Meal Period– In order for your meal period to be uncompensated it must be at least 30 minutes long (a shorter period may be long enough under special conditions) and you must be completely relieved from duty.

Breaks– Breaks from 5 to 20 minutes must be counted as hours worked. This includes short periods the employee is allowed to spend away from the work site for any reason.