Rights Under the FLSA : Minimum Wage

The FLSA guarantees a number of rights, primarily aimed at ensuring that workers get paid fairly for the time they work. (See Sections G and H, below, for an explanation of how to take action for FLSA violations.)

Minimum Wage

Employers must pay all covered employees not less than the minimum wage—currently set at $5.15 an hour.

Some states have established a minimum wage that is higher than the federal one—and you are entitled to the higher rate if your state allows for one. Employers not covered by the FLSA, such as small farm owners, are required to pay all workers the state minimum wage rate. (See “State Minimum Wage Laws for Regular and Tipped Employees” in Section E, below.)

The FLSA does not require any specific system of paying the minimum wage, so employers may base pay on time at work, on piece rates, or according to some other measurement. In all cases, however, an employee’s pay divided by the hours worked during the pay period must equal or exceed the minimum wage.

Many employers either become confused by the nuances and exceptions in the wage and hour law—or they bend the rules to suit their own pocketbooks. Whatever the situation, you would do well to double check your employer’s math. A few simple rules distilled from the law may help.

Hourly. Hourly employees must be paid minimum wage for all hours worked. Your employer cannot take an average—or pay you less than minimum wage for some hours worked and more for others.

Fixed rate or salary. Employees paid at a fixed rate can check their wages by dividing the amount they are paid in a pay period by the number of hours worked. The resulting average must be at least minimum wage.

Commissions and piece rates. Your total pay divided by the number of hours you worked must average at least the minimum hourly wage rate.

a. Form of Pay
Under the FLSA, the pay you receive must be in the form of cash or something that can be readily converted into cash or other legal forms of compensation, such as food and lodging. Your employer cannot, for example, pay you with a coupon or token that can be spent only at a store run by the employer. Employee discounts granted by employers do not count toward the minimum wage requirement.

b. Pay for Time Off
Neither the minimum wage section nor any other part of the FLSA requires employers to pay employees for time off, such as vacation, holidays, or sick days. Although most employers provide full-time workers some paid time off each year, the FLSA covers payment only for time on the job.

However, some state laws mandate that employees get paid time off for jury duty (see Section E2, below), for voting (see Section E3, below) and for family and medical leave. And most state laws provide that, if employers offer paid vacation days off, employees are entitled to be paid for the portion they have already earned when they quit or are fired.

c. Tips
When employees routinely receive a minimum amount in tips as part of their jobs—commonly, $20 to $30 per month as set out in state law—their employers are allowed to pay less than the minimum wage and credit the tips received against the minimum wage requirement. However, the employee’s hourly wage plus the tips the employee actually earns must add up to at least the minimum wage—or the employer has to make up the difference. (Under federal law, an employer can pay as little as $2.13 an hour, as long as the employee earns at least $30 in tips per month; some states have different rules, summarized in the chart in Section E1, below. (See Section B3b, below, for more on tips as wages.) Also, the employee must be allowed to keep all of the tips he or she receives.

d. Commissions
When people are paid commissions for sales, those commissions may take the place of wages. However, if the commissions do not equal the minimum wage, the FLSA requires the employer to make up the difference.