Warehouse & Wholesale Industries Under the FLSA

Jan 19, 2022 | Overtime & Wages

Characteristics Of The Warehouse & Wholesale Industries

The warehouse industry includes central warehouses for a business enterprise, public warehouses, and storage establishments.

The wholesale industry is characterized by the sale of goods for resale, rather than sales to the ultimate consumer.

Coverage Under The Fair Labor Standards Act (“FLSA”)

All employees of wholesale or warehouse employers whose gross annual dollar volume of sales made or business done is not less than $500,000 are covered by the FLSA.

Even if a wholesale or warehouse business is not a covered enterprise, most employees will be covered by the FLSA on an individual basis. Individual coverage applies to all employees who are engaged in interstate commerce or the production of goods for commerce. Such employees include persons who receive, ship, transport, or load goods that are moving in commerce or who prepare or transmit documents relating to such shipments. Other individuals, such as guards, janitors and maintenance employees who perform duties which are closely related and directly essential to such interstate activities, are also covered by the FLSA.

FLSA Pay Requirements

The FLSA sets basic minimum wage and overtime pay standards and regulates the employment of minors. Covered, nonexempt employees must be paid the federal minimum wage. Non-exempt employees must also be paid time and one-half their regular rates of pay for all hours worked over 40 per workweek, regardless of whether paid an hourly rate, salary, piece rate, commission or other basis. Each workweek stands alone and there can be no averaging of hours over two or more workweeks.

Youth Minimum Wage: The 1996 Amendments to the FLSA allow employers to pay a youth minimum wage of not less than $4.25 an hour to employees who are under 20 years of age during the first 90 consecutive calendar days after initial employment by their employer. The law contains certain protections for employees that prohibit employers from displacing any employee in order to hire someone at the youth minimum wage.

No one under the age of 16 may work in a warehouse. Warehouse employers may not employ anyone under 16 years of age. Wholesalers may have employees as young as 14 in certain jobs, but only during closely regulated hours and in very limited occupations. Employees under age 18 may not engage in occupations which have been declared hazardous, including operating most power-driven hoisting apparatus such as forklifts.

Federal regulations, 29 CFR Part 516, specify the records which are to be kept on each employee. Most of the required records are of the type generally maintained by employers in ordinary business practices (e.g., employee names, addresses, hours of work, rates of pay, wages, deductions). These must usually be maintained for a 3-year period.

There may be employees within a covered business who are exempt from the minimum wage and/or overtime provisions of the FLSA. Bona fide executive, administrative and outside sales persons are exempt from both minimum wage and overtime provisions, if all the tests of the exemptions are met. Interstate drivers, mechanics, and loaders may be exempt from the FLSA’s overtime provisions.

Some Typical Problems Of The Wholesale & Warehouse Industries 

• Employment of underage minors, especially in the operation of fork lifts and paper balers.
• Misapplication of the executive or administrative exemptions to non-exempt individuals, such as clerical workers, working forepersons, dispatchers, and inside salespersons. 
• The misconception that salaried employees need not be paid overtime.
• Failure to pay employees for all hours suffered or permitted to work, including, for example, time spent taking inventory, and completing paperwork, beyond the normal schedule.
• Failure to maintain time records on salaried or piece-rate employees.
• Giving compensatory time off in lieu of overtime pay.
• Considering certain employees to be “contract labor” and, thus, not covered by the FLSA’s provisions.
• Deductions made for reasons other than, for example, board and lodging, in overtime work weeks.

Source: U.S. Department of Labor (Fact Sheet #10, Revised July 2008)

Warehouse and Wholesale employees who believe they are victims of wage and hour violations are encouraged to contact Kehoe Law Firm, P.C. by completing the form above on the right or via [email protected] for a free, no-obligation evaluation of potential legal claims. 

Kehoe Law Firm, P.C.

Nurses Who Have Been Misclassified As Exempt From Overtime Pay

Jan 19, 2022 | Overtime & Wages

Nurses, The Fair Labor Standards Act & The Learned Professional Exemption

The Fair Labor Standards Act (“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 not less than time and one-half the regular rate of pay for all hours worked over 40 in a workweek.

Section 13(a)(1) of the FLSA, however, provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees. To qualify for exemption, employees, including nurses, must meet certain tests regarding their job duties and be paid on a salary basis of not less than $684 per week.

To qualify for the learned professional employee exemption, all 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. Registered nurses, however, 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.

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

Source: U.S. Department of Labor

Nurses Who Have Been Misclassified As Exempt From Overtime

Merely because a nurse with “advanced knowledge” or a “specialized advanced academic degree” is paid a salary does not automatically mean that a nurse can properly be classified as exempt from overtime pay, particularly if a nurse who is deemed classified as exempt performs duties inconsistent with the learned professional employee exemption. 

NURSES WHO BELIEVE THEY HAVE BEEN MISCLASSIFIED AS EXEMPT FROM OVERTIME PAY ARE ENCOURAGED TO COMPLETE THE FORM ABOVE ON THE RIGHT OR CONTACT KEHOE LAW FIRM, P.C., MICHAEL YARNOFF, ESQ., (215) 792-6676, EXT. 804, [email protected], [email protected], FOR A FREE, NO-OBLIGATION EVALUATION OF YOUR EMPLOYMENT CIRCUMSTANCES AND POTENTIAL LEGAL CLAIMS.

Kehoe Law Firm, P.C.