FLSA Violations Affecting Specific Employees

Certain jobs or job categories frequently are paid in ways that violate the FLSA. We have listed some of the more common violations for the types of workers identified on this page. Not all violations are listed. We encourage you to contact a lawyer if you have questions about your rights under the FLSA.

• Blue Collar Workers
• Construction Workers
• Employees of Hotels and Motels
• Residing on the Employer’s Premises
• Homeworkers
• Nurses and LPNs
• All First Responders
• Technologists and Technicians
• Tipped Employees
• Minimum Wages for Tipped Employees
• Relief Employees of Living Centers

Blue  Collar Workers

​The FLSA requires that most employees in the United States be paid at least the federal minimum wage for all hours worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 in a workweek. However, Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional, and outside sales employees. Section 13(a)(1) and Section 13(a)(17) also exempt certain computer employees. To qualify for exemption, employees must meet certain tests regarding their job duties and be paid on a salary basis at not less than $684 per week.

The exemptions provided by FLSA Section 13(a)(1) do not apply to manual laborers or other “blue-collar” workers who perform work involving repetitive operations with their hands, physical skill and energy.  Such nonexempt “blue-collar” employees gain the skills and knowledge required for performance of their routine manual and physical work through apprenticeships and on-the-job training.

FLSA-covered, non-management employees in production, maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers are entitled to minimum wage and overtime premium pay under the FLSA, and are not exempt under Section 13(a)(1) of the FLSA nor the regulations at 29 CFR Part 541, no matter how highly paid they might be.

Construction Workers

Businesses involved in this industry are engaged in the activities of new construction or reconstruction. The repair or renovation of existing commercial and/or residential structures, as well as roadway and bridge construction, are also a part of this industry. The following work activities are included in the construction industry: painting, sandblasting, tuckpointing, roofing, guttering, spouting, water well drilling, installation of flooring, and landscaping.

Typical Problems

(1) Failure to record all hours worked, including time spent working before or after the shift. (2) Shorting of hours by using terms such as down time or rain delay. (3) Failure to compensate for meal breaks where the employee is not completely relieved of all duties to enjoy uninterrupted time for the meal. (4) “Banking” of overtime hours or payment of overtime in the form of “comp time,” which is not permitted in the private sector under the FLSA. (5) Failure to combine the hours worked for overtime purposes by an employee in more than one job classification for the same employer within the same workweek. (6) Failure to segregate and pay overtime hours on a workweek basis when employees are paid on a bi-weekly or semi-monthly basis. (7) Failure to pay for travel from the shop to the work site and back when such travel is part of the employee’s principal activities or required by the employer.

Coverage

A business in the construction industry is subject to the FLSA’s enterprise coverage if it has two or more employees and an annual gross sales volume of $500,000 or more. Individual coverage applies to employees whose work regularly involves them in commerce between states (“interstate commerce”), regardless of the business’s annual dollar volume or number of employees. Any person who works on or otherwise handles goods that are moving in interstate commerce, or who works on the expansion of existing facilities of commerce, is individually subject to the protection of the FLSA. Other persons, such as guards, janitors, and maintenance employees who perform duties closely related and directly essential to such interstate activities, are also covered by the FLSA.

Requirements

Employers who are covered under the FLSA must comply with the recordkeeping requirements of 29 CFR Part 516.

Employers must establish a workweek (seven consecutive 24-hour periods) and must pay overtime when hours worked exceed 40 in the workweek. The practice of paying overtime only after 80 hours in a bi-weekly pay period is not compliant with the FLSA, as each workweek must stand alone.

For non-exempt employees, covered employers must pay at least the federal minimum wage and time and one-half the regular rate of pay for time worked over 40 hours in a workweek. Employers must also comply with the FLSA’s child labor requirements. This is particularly important in the construction industry, where many jobs involve hazardous tasks or equipment. Most construction occupations are prohibited for minors under 18 by the Hazardous Occupation Orders.

If the employer performs work on a federally financed project or a project in which the federal government has provided assistance in financing, a different and somewhat stricter set of labor standards applies. Typically, this requires that employees be paid a “prevailing wage rate” under the Davis-Bacon Act.

Employees of Hotels or Motels

The primary function of a hotel or motel is to provide lodging facilities to the general public. In addition, most hotels or motels provide food to guests and many sell alcoholic beverages. These establishments may also earn revenue from other activities such as valet services offering cleaning and laundering of garments for guests, news stands, and renting out rooms for meetings, lectures, trade exhibits, and weddings.

Typical Problems Causing Non-Compliance Include:

• Employees placed on salary and classified as exempt without regard to the duties performed.
• Failure to maintain records of, or pay overtime to, non-exempt salaried employees.
• Failure to record and pay employees for all hours suffered or permitted to be worked.
• Illegal deductions from pay for items like cash register shortages, uniforms, errors, bad checks, etc., if they reduce wages below minimum wage or cut into overtime compensation.
• Failure to pay the correct overtime rate to tipped employees, or failure to pay the correct overtime rate that includes all service charges, commissions, bonuses and all other remuneration.
• Tips not sufficient to make up the difference between the employer’s direct wage obligation and the minimum wage; employees receiving tips only; and sharing a portion of tipped employees’ tips with employees who are not eligible because they do not normally receive tips.
• Paying straight time for hours worked beyond 40 per week instead of required overtime pay, or averaging the number of hours worked over two or more weeks to avoid overtime pay.

Requirements

Minimum Wage: Covered workers must be paid at least the federal minimum wage, currently $7.25 an hour. Wages are due on the regular payday for the pay period covered. Deductions from wages for items such as required uniforms are illegal if they reduce the employee’s wages below the minimum wage or cut into any overtime pay. Tips may be included as part of wages for employees who regularly receive more than $30 a month in tips. However, the employer must pay at least $2.13 an hour in direct wages to tipped employees and make sure that the amount of tips actually received by tipped employees is enough to meet the remainder of the minimum wage (or otherwise pay the difference in wages). Note: Some states or localities require higher minimum direct wages for tipped employees or do not allow a tip credit at all.

Overtime: Overtime must be paid at not less than one and one-half times the employee’s regular rate of pay for each hour worked in excess of 40 a week. For overtime calculations, a tipped employee’s regular rate must include both the cash wage paid by the employer and the amount of tip credit claimed, plus the reasonable cost or fair value of any facilities furnished to the employee as allowed by the FLSA (such as the cost of meals), and the cash wages including any commissions and certain bonuses paid by the employer.

Tips: Tipped employees are those who customarily and regularly receive more than $30 a month in tips. If the employer elects to claim a tip credit, the employer must inform employees in advance, advise them of the amount of tip credit to be claimed, and pay them at least the applicable minimum wage when wages and tips are combined. Also, employees must retain all of their tips, except in the case of valid tip pool arrangements.

Records: The FLSA requires employers to keep records of wages, hours, and other items, as specified in the record keeping regulations, 29 CFR Part 516. Records must include daily and weekly hours worked, total wages paid each pay period, and the amount of tip credit taken, if any.

Exemptions: Section 13(a)(1) of the FLSA exempts bona fide executive, administrative, professional, and outside sales employees from the minimum wage and overtime pay requirements of the FLSA, if they meet certain tests regarding their job duties and responsibilities and are compensated “on a salary basis” at not less than $684 per week. Further information concerning these exemptions can be found in Regulations, 29 CFR Part 541.

Employees Residing on the Employer’s Premises

Some employees work at home or live on their employer’s premises on a permanent basis or for extended periods of time. Examples include an apartment complex maintenance person who lives in the apartment complex, a house parent in a group home, or a college student employed as a “resident assistant” who lives in the dormitory. If this describes your employee’s employment situation, not all of the time spent at their home or at your premises is considered hours worked. Ordinarily, the employee has time to engage in normal private activities such as sleeping, eating, entertaining, and other periods of complete freedom from all duties when they are able to leave the premises and use the time as they choose.

Reasonable Agreement

It is difficult to determine the exact hours worked under these circumstances, and any reasonable agreement between the employer and the employee that takes into consideration all of the applicable facts will be accepted. In this regard, it may be helpful to review the rules on waiting time, meal periods, and sleep time. The agreement must indicate the number of hours the employee will work and the hours that may be used for personal activities.

The reasonable agreement must be a mutual agreement between the employer and employee, not a unilateral decision by the employer. It should normally be in writing to avoid any misunderstanding of the terms and conditions of employment. It must account for both time spent working and time the employee may engage in normal private activities, with sufficient time for eating, sleeping, entertaining, and other periods of complete freedom.

The reasonable agreement should consider all relevant factors, including any restrictions or limitations on the use of the employee’s personal time and the expected interruptions to eating and sleeping periods. Whether the employee is truly free to use personal time as they wish will depend on the actual circumstances, regardless of the written agreement.

The following is an example of a reasonable agreement: a resident assistant in a university dormitory has an agreement with the university to be available for the dormitory residents 5 hours each day (from 10:00 a.m. to 1:00 p.m. and from 7:00 p.m. to 9:00 p.m.) Monday through Friday and to respond to any emergencies in the dormitory. The resident assistant may use the remainder of their time for attending classes, studying, going to sporting events or concerts, etc., as they choose. The university considers as hours worked the 5 hours per day (Monday through Friday) that the resident assistant is available to residents and any time spent responding to emergencies in the dormitory.

An exact record of hours worked is not required if the employee is living on the premises or working at home. The employer may keep a time record showing the schedule adopted in the agreement and indicate that the employee’s work time generally conformed to the agreement or schedule.

If the employer and employee find that there is a significant difference between the agreed-upon hours and the actual hours needed to perform the job, a new agreement must be reached that reflects the actual hours the employee is required to work. All of the time the employee spends working is considered hours worked.

Homeworkers

Under the FLSA, industrial homework (as defined in 29 C.F.R. § 530.1(d)) means the production by any person in or about a home, apartment, tenement, or room in a residential establishment, of goods for an employer who suffers or permits such production, regardless of the source (whether obtained from an employer or elsewhere) of the materials used by the homeworker in such production.

Examples Examples of work performed by homeworkers are:

• A person who sews at home;
• A person hired to do data processing at home;
• A person who is hired to do telephone surveys from their home;
• A person who manufactures jewelry at home;
• A person who ties fishing flies at home;
• A person who does bookkeeping, payroll, or other clerical work at home.

Typical Problems

1. Employer improperly treats homeworkers as “independent contractors.”
2. Employer fails to maintain required records of hours, production, etc., or fails to instruct the employee to record the required data in the DOL homeworker handbook.
3. Employer fails to ensure that a homeworker paid on a piece rate basis has earned at least the minimum wage.
4. The employer must bear the cost of tools purchased as well as tool maintenance and repair to the extent that these costs cut into the minimum wage or overtime wages required, as provided in 29 C.F.R. § 531.35.
5. Employer fails to count as hours worked preparatory and concluding activities, time spent at the shop, travel time, and training time.
6. Employer fails to ensure proper certification for the restricted industries.

Hours Worked: All of the time that a homeworker spends at home is not hours worked for the employer. Ordinarily, the homeworker will engage in normal private pursuits such as eating, sleeping, and cleaning, and other periods when no work is being performed for the employer. The hours actually worked as a homeworker include time spent preparing materials, cleaning up, and traveling to and from the company to pick up work and return finished work. If the homeworker reports (to pick up or return work) at the time designated by the employer and is required to wait, such waiting time is hours worked. If reporting at a time other than that specified by the employer, the waiting time will not be considered hours worked.

Requirements: Homework requires certification in only seven specific industries: women’s apparel, jewelry manufacturing, knitted outerwear, gloves and mittens, button and buckle manufacturing, handkerchief manufacturing, and embroideries. Certification occurs when the employer obtains an employer certificate, or homeworkers obtain individual certification, from the Department of Labor’s Wage and Hour Division, authorizing such work. Certified employers of homeworkers in these industries are required to renew their certificate every two years. Employer certification is not available for women’s apparel and certain hazardous jewelry manufacturing operations; only individual certification is permitted. Homework under the FLSA is not restricted in any industry other than those listed above. However, all individually covered homework is subject to the FLSA’s minimum wage, overtime, and recordkeeping requirements.

Homeworker employees must be paid the federal minimum wage, which is currently $7.25 per hour. This rate must be met regardless of whether the worker is paid by time, piece, job, incentive, or any other basis. The cost of tools, tool repair, or other similar requirements may not be borne by the worker where such cost would reduce the wages paid below the required minimum wage or in any way reduce wages due for overtime hours. Overtime must be paid at one and one-half times the employee’s regular rate of pay for each hour worked in excess of 40 hours in any workweek. The regular rate includes all remuneration for employment, such as piece rate earnings and commissions paid. Time and one-half of the average piece rate of pay is to be paid for hours worked over 40 per week, if the average is greater than the employee’s regular rate of pay (never less than the required minimum wage).

Records which must be kept for all employees include: name, Social Security number, home address and telephone number, date of birth (if under 19 years of age), hours worked each day (including time spent transporting), total hours worked each workweek, basis of pay computations, regular pay, overtime premium pay, total gross pay, deductions (specifying the nature and amount of each), and net pay. All employees who have been hired since November 1986 must also complete Form I-9, required by U.S. Citizenship and Immigration Services (USCIS).

When employing homeworkers, a separate homeworker handbook is required. These handbooks are available through Wage and Hour offices. Employers are responsible for ensuring that handbooks are completed as required. The handbooks require homeworkers to also list business-related expenses, such as equipment and supplies.

In the case of clerical workers who may perform duties at home on only an occasional or sporadic basis, employers are not required to follow homework regulations. However, all hours, including the time worked at home, must be recorded and compensated as required by the FLSA for every employee.

Nurses and LPNs

The FLSA requires that most employees in the United States be paid at least the federal minimum wage for all hours worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 in a workweek. However, Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees. Section 13(a)(1) and Section 13(a)(17) also exempts certain computer employees. To qualify for exemption, employees must meet certain tests regarding their job duties and be paid on a salary basis at not less than $684 per week.

Registered Nurses May or May Not be Entitled to Overtime Pay

To qualify for the learned professional employee exemption, all of the following tests must be met:

• The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $684 per week;
• The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
• The advanced knowledge must be in a field of science or learning; and
• The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.Registered nurses who are paid on an hourly basis should receive overtime pay. However, registered nurses who are registered by the appropriate State examining board generally meet the duties requirements for the learned professional exemption, and if paid on a salary basis of at least $684 per week, may be classified as exempt.

LPNs are generally Entitled to Overtime Pay

Licensed practical nurses and other similar health care employees, however, generally do not qualify as exempt learned professionals, regardless of work experience and training, because possession of a specialized advanced academic degree is not a standard prerequisite for entry into such occupations, and are entitled to overtime pay.

Police Officers, Fire Fighters and Other First Responders

Fire protection personnel employed by a fire department include firefighters, paramedics, emergency medical technicians, rescue workers, ambulance personnel, or hazardous materials workers who are:
1. trained in fire suppression,
2. have the legal authority and responsibility to engage in fire suppression, and
3. are engaged in the prevention, control and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.

Law enforcement personnel are employees who are empowered by State or local ordinance to enforce laws designed to maintain peace and order, protect life and property, and to prevent and detect crimes; who have the power to arrest; and who have undergone training in law enforcement.

Coverage

Employees of State and local governments are covered by the FLSA (section 3(s)(1)(C)).

Requirements

Hours of work include all of the time an employee is on duty at the employer’s establishment or at a prescribed work place, as well as all other time during which the employee is suffered or permitted to work for the employer. Under certain specified conditions time spent in sleeping and eating may be excluded from compensable time.

The FLSA requires that all covered, non-exempt employees be paid at least the federal minimum wage, which is currently $7.25 per hour.

The FLSA requires that all covered, non-exempt employees be paid time and one-half their regular rates of pay for all hours worked in excess of 40 in a workweek.

Section 13(b)(20) of the FLSA provides an overtime exemption to law enforcement or fire protection employees of a public agency which employs less than five employees in law enforcement or fire protection activities.

Section 7(k) of the FLSA provides that employees engaged in fire protection or law enforcement may be paid overtime on a “work period” basis. A “work period” may be from 7 consecutive days to 28 consecutive days in length. For example, fire protection personnel are due overtime under such a plan after 212 hours worked during a 28-day period, while law enforcement personnel must receive overtime after 171 hours worked during a 28-day period. For work periods of at least 7 but less than 28 days, overtime pay is required when the number of hours worked exceeds the number of hours which bears the same relationship to 212 (fire) or 171 (police) as the number of days in the work period bears to 28.

Under certain prescribed conditions, a State or local government agency may give compensatory time at a rate of not less than one and one-half hours for each overtime hour worked, in lieu of cash overtime compensation. Employees engaged in police and fire protection work may accrue up to 480 hours of compensatory time.

An employee should be permitted to use compensatory time within a reasonable period after making the request, if doing so does not “unduly disrupt” the operations of the employer.

At the time of termination an employee must be paid the higher of (1) his or her final regular rate of pay or (2) the average regular rate during his or her last three years of employment for any compensatory time remaining “on the books” when termination occurs. For more information on state and local government employees under the FLSA, refer to U.S. Department of Labor Fact Sheet #7.

No covered employer may employ any minor in violation of the child labor provisions of the FLSA. The Act establishes specific provisions concerning prohibited occupations and/or hours of employment of minors under age 18.

Covered employers must make, keep and preserve payroll-related records as described by Regulations, 29 CFR Part 516.

Technologists and Technicians

The FLSA requires that most employees in the United States be paid at least the federal minimum wage for all hours worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 in a workweek. However, Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees. Section 13(a)(1) and Section 13(a)(17) also exempts certain computer employees. To qualify for exemption, employees must meet certain tests regarding their job duties and be paid on a salary basis at not less than $684 per week.

Technologists and Technicians

Technologists and technicians, such as engineering technicians, ultrasound technologists, licensed veterinary technicians, avionics technicians, and other similar employees are not exempt under Section 13(a)(1) from the minimum wage and overtime requirements of the FLSA because they generally do not meet the requirements for the learned professional exemption. To qualify for the learned professional employee exemption, all of the following tests must be met:

• The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $684 per week;
• The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
• The advanced knowledge must be in a field of science or learning; and
• The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

Technologists and technicians do not meet these requirements for the learned professional exemption because they generally do not work in occupations that have attained recognized professional status, which requires that an advanced specialized academic degree is a standard prerequisite for entrance into the profession.

Tipped Employees

Tipped employees are those who customarily and regularly receive more than $30 a month in tips. Tips actually received by tipped employees may be counted as wages for purposes of the FLSA, but the employer must pay at least $2.13 an hour in direct wages, and the tips must be sufficient to bring the employee’s total hourly pay to at least the federal minimum wage of $7.25 an hour.

Tipped employees can include:

• Servers
• Bartenders
• Bussers and barbacks
• Counter personnel who serve customers (e.g., soda fountain workers, sandwich makers)
• Hosts/hostesses who also perform tipped duties
• Bellhops
• Valet parking attendants
• Hotel porters and door attendants
• Casino dealers
• Nail technicians
• Hairdressers and barbers
• Spa service providers (e.g., massage therapists, estheticians)
• Golf caddies
• Delivery drivers (e.g., food or flower delivery, where tips are customary)
• Airport skycaps
• Room service attendants
• Coat check attendants
• Car wash attendants
• Tour guides
• Coffee shop baristas (when tips are regularly received)

Requirements

If an employer elects to use the tip credit provision the employer must:

1. Inform each tipped employee about the tip credit allowance (including amount to be credited) before the credit is utilized.
2. Be able to show that the employee receives at least $7.25 per hour (or higher if applicable under state law) when direct wages and the tip credit allowance are combined.
3. Allow the tipped employee to retain all tips, whether or not the employer elects to take a tip credit for tips received, except to the extent the employee participates in a valid tip pooling arrangement.

If an employee’s tips combined with the employer’s direct wages of at least $2.13 an hour do not equal the minimum hourly wage ($7.25 an hour) the employer must make up the difference.

Dual Jobs: When an employee is employed concurrently in both a tipped and a non-tipped occupation, the tip credit is available only for the hours spent in the tipped occupation. The Act permits an employer to take the tip credit for time spent in duties related to the tipped occupation, even though such duties are not by themselves directed toward producing tips, provided such duties are incidental to the regular duties and are generally assigned to such occupations. Where tipped employees are routinely assigned to maintenance, or where tipped employees spend a substantial amount of time (in excess of 20 percent) performing general preparation work or maintenance, no tip credit may be taken for the time spent in such duties.

Retention of Tips: The law forbids any arrangement between the employer and the tipped employee whereby any part of the tip received becomes the property of the employer. A tip is the sole property of the tipped employee. Where an employer does not strictly observe the tip credit provisions of the Act, no tip credit may be claimed and the employees are entitled to receive the full cash minimum wage, in addition to retaining tips they may have received.

Service Charges: A compulsory charge for service, for example, 15 percent of the bill, is not a tip. Such charges are part of the employer’s gross receipts. Where service charges are imposed and the employee receives no tips, the employer must pay the entire minimum wage and overtime required by the Act.

Tip Pooling: The requirement that an employee must retain all tips does not preclude tip splitting or pooling arrangements among employees who customarily and regularly receive tips, such as waiters, waitresses, bellhops, counter personnel (who serve customers), busboys/girls and service bartenders. Tipped employees may not be required to share their tips with employees who have not customarily and regularly participated in tip pooling arrangements, such as dishwashers, cooks, chefs, and janitors. Only those tips that are in excess of tips used for the tip credit may be taken for a pool. Tipped employees cannot be required to contribute a greater percentage of their tips than is customary and reasonable.
Employers that do not take a tip credit (i.e., pay at least $7.25/hour in direct wages) may implement nontraditional tip pools that include employees who are not customarily tipped, such as cooks and dishwashers. However, managers and supervisors may never participate in a tip pool, regardless of whether a tip credit is taken.

Credit Cards: Where tips are charged on a credit card and the employer must pay the credit card company a percentage on each sale, then the employer may pay the employee the tip, less that percentage. This charge on the tip may not reduce the employee’s wage below the required minimum wage. The amount due the employee must be paid no later than the regular payday and may not be held while the employer is awaiting reimbursement from the credit card company.

Typical Problems

Minimum Wage Problems: Employee does not qualify as a “tipped employee”, tips are not sufficient to make up difference between employer’s direct wage obligation and the minimum wage; employee receives tips only — so the full minimum wage is owed; illegal deductions for walk-outs, breakages and cash register shortages; and invalid tip pools.

Overtime Problems: Failure to pay overtime on the full minimum wage; failure to pay overtime on the regular rate including all service charges, commissions, bonuses and other remuneration.

Off the Clock: Time spent doing work not requested by the employer, but still allowed, is generally hours worked, since the employer knows or has reason to believe that the employees are continuing to work and the employer is benefiting from the work being done. This time is commonly referred to as “working off the clock.”

Tipped employees who earn $2.13/hour in wages while their employer applies the tip credit to the remaining minimum wage amount are considered to be minimum wage employees. Any off the clock work by these employees would reduce their wages to below minimum wage and would therefore be a failure by the employer to pay minimum wage.

Uniforms: The FLSA does not allow uniforms, or other items which are considered to be primarily for the benefit or convenience of the employer, to be included as wages. Thus, an employer may not take credit for such items in meeting their obligations toward paying the minimum wage or overtime.

The FLSA does not require that employees wear uniforms. However, if the wearing of a uniform is required by some other law, the nature of a business, or by an employer, the cost and maintenance of the uniform is considered to be a business expense of the employer. If the employer requires the employee to bear the cost, it may not reduce the employee’s wage below the minimum wage or cut into overtime compensation required by the Act.

For example, if an employee who is subject to the statutory minimum wage of $7.25 an hour is paid an hourly wage of $7.25, the employer may not make any deduction from the employee’s wages for the cost of the uniform nor may the employer require the employee to purchase the uniform on their own. However, if the employee were paid $7.50 an hour and worked 30 hours in the workweek, the maximum amount the employer could legally deduct from the employee’s wages would be $7.50 ($0.25 x 30 hours).

The employer may prorate deductions for the cost of the uniform over a period of paydays provided the prorated deductions do not reduce the employee’s wages below the required minimum wage or overtime compensation in any workweek.

Employees of Community Living Centers

Full-Time and Part-Time Relief Employees of Community Living Centers and Other Similar Facilities

Some employees, particularly those employed in community living centers, group homes, and halfway houses for the physically or developmentally disabled, reside on their employer’s premises on less than a permanent basis. For sleep time deductions to apply, the community living center or similar facility must have at least one full-time employee who resides on the premises on a permanent or extended basis. There is no fixed hourly threshold in the FLSA regulations defining an ‘extended period of time,’ but examples may include employees who reside on the premises for five consecutive days or for 120 hours per week.

If your employee is a full-time employee who resides on your premises for an extended period of time, you may deduct up to 8 hours of sleep time per 24-hour period under the following conditions:

1. You and your employee have an agreement, made prior to performance of the work, that permits deduction of up to 8 hours of sleep time, bona fide meal periods, and/or scheduled free time when your employee is completely relieved from duty.
2. Your employee resides on your premises for an extended period of time (see example above).
3. Your employee sleeps on your premises during the designated sleep period.
4. Your employee must be compensated for at least 8 hours in each 24-hour period.
5. You provide your employee with private quarters. These should be furnished and separate from clients and other staff, with accommodations such as a bed, table, lamp, and storage space, allowing the employee to leave personal belongings during on- and off-duty periods.

If your employee is a part-time relief employee working 24-hour shifts or longer, you may deduct up to 8 hours of sleep time under the following conditions:

1. You and your employee have a prior agreement to deduct sleep time, meal periods, and/or scheduled free time.
2. The employee is on duty for a shift lasting at least 24 consecutive hours.
3. Adequate sleeping facilities are provided, and the employee receives at least 5 uninterrupted hours of sleep.
4. All interruptions to sleep time must be compensated as hours worked.

To deduct any sleep time, the employee must be able to get at least 5 hours of uninterrupted sleep per night. All time spent performing work must be paid. If actual work conditions differ substantially from the agreement, a new agreement reflecting actual hours worked must be reached.