About the author:
LeeAnn Miley is a salon owner based in Hastings, Nebraska, and the President and Executive Director of The Sovereign Stylist. Her personal experiences led her to advocate and educate stylists on proper worker classification. LeeAnn’s blogs are typically focused on tax compliance, worker classification, and general business practices. LeeAnn believes that laws and business are powerful entities when one has knowledge of them and has dedicated herself to spreading such knowledge to the industry she loves.
Storytime, Jessica works full-time at a local salon as a commissioned stylist. Every Friday evening the salon owner gathers up the five other stylists after the last hair has been swept from the floor and hands them an envelope with their weekly commission split. Jessica rarely looks at her check before she deposits it in her bank account, but this week she took a look to see what she made considering she worked eight extra hours to cover for a coworker. However, it turns out that she was still paid the usual $400 she normally makes after putting in her regular 40 hours.
Jessica decides to mention this to a senior stylist while they were both mixing color in the dispensary since she also worked extra hours to cover for the absent stylist. It turns out, her check was short money too. After further investigation, Jessica finds out that the salon has never paid the stylists extra wages for overtime worked during the workweek which is against the Fair Labor Standards Act (FLSA) according to the poster hung in their breakroom. Hoping to receive the money they are owed for the extra hours they put in at the request of the salon owner, Jessica and her fellow stylists file a complaint with the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD).
What does this mean for the salon owner? As far as they are concerned, they paid well over their state’s minimum wage requirement, or does that even matter?
According to Katherine L. Fechte, an associate at Greensfelder, Hemker & Gale in St. Louis, MO, "In the simplest terms, [the FLSA is] the federal law that primarily covers four things, with respect to employees, it establishes the standards for minimum wage, overtime, recordkeeping and youth employment. It covers both the private sector and ... federal, state and local government."
Standards for Wages
Covered, nonexempt workers are entitled to a minimum wage of $7.25 per hour effective July 24, 2009. It is important to know that many states have instituted their own minimum wage laws, which means employers have to pay their employees the higher of the two wages. Nonexempt workers must be paid overtime pay at a rate of not less than one and one-half times their regular rates of pay after 40 hours of work in a workweek, which we will cover in the next section.
FLSA also requires that wages be paid on regular paydays for the work week covered. FLSA does not establish a time frame for what qualifies as a workweek, but some states do which means the employer has to be in compliance with both the federal and state law. Deductions made from wages for such items as cash shortages from the register, missing retail, employer-required uniforms, and tool purchase requirements, client redos, are legal (according to FLSA) as long as they do not reduce the employees’ wages below the minimum wage required by the FLSA or reduce the amount of overtime pay due under the FLSA. Once again, individual states also have their own laws regarding deductions from wages which must also be taken into account.
While the FLSA does set basic minimum wage and overtime pay standards and regulates the employment of minors, there are a number of employment practices which the FLSA does not regulate.
For example, the FLSA does not require:
vacation, holiday, severance, or sick pay;
meal or rest periods, holidays off, or vacations;
premium pay for weekend or holiday work;
pay raises or fringe benefits; or
a discharge notice, reason for discharge, or immediate payment of final wages to terminated employees.
Exemption from Overtime
There are exemptions from paying employees overtime. The first thing we have to establish is if cosmetologists are considered white-collar workers or blue-collar workers. According to Fact Sheet #17A from the WHD, white-collar workers are employees employed as bona fide executive, administrative, professional outside sales employees, and certain computer employees. White-collar workers tend to work in an office environment.
Blue-collar workers are usually those who work in some sort of trade. One might argue that cosmetologists are considered blue-collar workers, however, the WHD considers us as blue-collar workers because we are a part of the service industry. In turn, this means that employee stylists are entitled to at least one and a half times their hourly wage for any hours worked over 40 during a 7 day work week. FLSA does not put a limit on the number of hours someone over the age of 16 can work during a workweek. Records must be kept by employers of all wages paid and of all hours worked, regardless of where the work is performed. Workers should keep a record of their employer’s name, address, phone number, the hours they worked, and any payments received.
If you believe you or someone you know has been denied proper wages under the FLSA, you may file a complaint by mail or in person at an office of the WHD of the Department of Labor. In the complaint you will need to include the following information:
The employee's personal information, including name, address and telephone number
The employer's name, address, telephone number, and type of business
The job title and description of the work done
Payment information, including how much the employee is paid, the method of payment and how often wages are paid
A description of the alleged violations
Dates of the violations
After a complaint is filed, the WHD reviews the complaint and conducts an investigation, helping the employee recover back wages. The WHD will contact the complainant if more information is needed for them to pursue the allegation.
The names of employees who file complaints are kept confidential and an employer can't fire or otherwise discriminate against an employee who participates in a legal proceeding under the FLSA.
Complaints can be filed by third parties on behalf of an employee who has been denied proper wages. If a third party is making the complaint, the WHD suggests preparing extra information beforehand.
It is important to know that many states have additional protections for workers, including higher minimum wages and overtime pay for any day's work beyond eight hours. Often, wage and hour complaints also may be filed with state agencies.
The earlier you file a complaint the better. The FLSA has a statute of limitations of two years (three years for willful violations), meaning that you may only recover back wages claimed less than two years after an action is filed. The WHD recommends filing no later than 18 months after the violation occurred. The statutes of limitations for state laws vary, but reporting a violation as early as possible is often recommended.