The Fair Labor Standards Act: Criminal and Civil Liability
| Publication year | 1985 |
| Pages | 1802 |
| Citation | Vol. 14 No. 9 Pg. 1802 |
1985, October, Pg. 1802. The Fair Labor Standards Act: Criminal and Civil Liability
Pursuant to a directive handed down by the Department of Labor ("DOL") on June 14, 1985, public employers who have failed to comply with the Fair Labor Standards Act ("Act") by October 15, 1985, may be subject to the following:
1) Civil actions filed by employees to recover back wages and an equal amount of liquidated damages, plus attorney's fees and court costs;
2) Civil actions filed by the Secretary of Labor on behalf of employees for back wages and an equal amount of liquidated damages; and
3) Criminal penalties including fines and imprisonment.(fn1)
The DOL directive was the result of the decision issued by the U.S. Supreme Court in Garcia v. San Antonio Metropolitan Transit Authority.(fn2) This case made state and local governments subject to the minimum wage, overtime pay and recordkeeping provisions of the Act.(fn3) The DOL directive not only set October 15, 1985, as the date for enforcement, but also made overtime payable by public employers retroactive to April 15, 1985. This drastic change in the law affects at least 1,610 state and local governmental bodies in Colorado, including such political subdivisions as special districts and airport authorities, and all of their employees.
Lawyers representing public employers should advise their clients to comply with the Act as soon as possible to avoid the sanctions which may be imposed by the DOL. This can be accomplished by immediately initiating the changes discussed in this column and documenting all efforts to comply with the Act. Documentation, in particular, is essential to avoiding a finding by the DOL that a public employer has intentionally violated the Act and is therefore subject to prosecution.
For the Act to apply, a person must be engaged in work which is covered by the Act and an employer/employee relationship must exist. By statutory definition, the term "employ" includes "to suffer or permit to work."(fn4) An employer's mere knowledge that work has been done for him or her by another is sufficient to create the employment relationship under the Act.(fn5)
Persons who are not employees and, therefore, are excluded from the coverage of the Act include elected officials or their appointees,(fn6) independent contractors,(fn7) trainees and students(fn8) and volunteers.(fn9) The important principle to remember with respect to volunteers is that any cash or in-kind benefits given by an employer may be considered "wages" by the DOL, bringing the volunteer within the scope of the Act. The DOL has promulgated special regulations with respect to volunteer firefighters or law enforcement officers.(fn10)
Because the categories of persons previously mentioned are not "employees" for purposes of the Act, the minimum wage and overtime provisions are not applicable. However, the recordkeeping requirements are applicable to trainees and students.(fn11)
Once it is determined that an employer/employee relationship exists, the public employer must comply with the basic minimum wage, overtime pay standards and reporting requirements of the Act. The Act divides employees into four classifications: exempt; non-exempt; exempt from the minimum wage requirement of the Act; and partially exempt employees.
The Act exempts various categories of employees from all or part of its coverage. Of special importance to public employers are those provisions exempting professional, executive and administrative employees; certain seasonal or recreational workers;(fn12) and police and fire departments with fewer than five employees engaged in law enforcement or fire protection activities.(fn13)
With respect to the executive, administrative and professional exemptions, the
Although the regulations provide some guidance in determining which employees...
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