Effective July 24, 2007 minimum wage under the FLSA is $5.85 an hour.108
Effective January 1, 2007, the minimum wage is $7.15 an hour.109
Most Connecticut employers are covered under both the Federal Fair Labor Standard Act and Connecticut's minimum wage laws.110 Employers must comply with the laws that provide the higher standard for employees. As of January 1, 2007, the minimum wage is $7.65 an hour. 112
Under the FLSA, overtime premiums must be paid to non-exempt employees at a rate of not less than 1˝ times the regular rate for all hours worked over 40 in a week.113 Only hours actually worked are counted; lunch, break periods, and other time off is not included. The FLSA does not mandate payment of overtime premiums for hours worked in one workday in excess of some amount, and it does not place a limitation on the number of days worked in one week. Therefore, so far as the FLSA is concerned, an employer can work a non-exempt employee any number of hours per workday and pay overtime premiums only when that employee works more than forty hours during the workweek.
As a general matter, employers are responsible for paying overtime to non-exempt employees for work over 40 hours in a week at a rate of 1˝ times the regular rate of pay. 114
Residential workers are generally entitled to overtime for all work in excess of 44 hours in a week. 115
A legal day's work is 8 hours in one day unless agreed otherwise.116 For workweeks in excess of 40 hours, an employee is entitled to overtime pay at 1˝ times the employee's regular pay rate.117
The Fair Labor Standards Act does not require payment when employees show up but are not put to work. Therefore, state law governs.
Any employee who reports to work for any day by request or permission of the employer must be paid for at least 4 hours, or for the number of hours worked in the regularly scheduled shift, whichever is less, at the minimum wage. However, if the employee's wage rate multiplied by the number of hours actually worked during that week is equal to or greater than the actual hours worked multiplied by the minimum wage plus any additional hours not worked during that week but awarded for call-in pay, the employer is not required to pay the employee for the hours not worked.118 In other words, this premium creates a "pay floor" which is satisfied if the employee's total actual pay exceeds the minimum wage multiplied by actual hours worked plus four hours for each call-in occurrence.
An employer must pay employees for all time, required or permitted, spent at the prescribed workplace or otherwise on duty. This includes time spent waiting on the premises while no work is provided by the employer, but does not include time provided for meals unless the employee is required or permitted to work during that time. All hours worked by employees are to be rounded to the nearest unit of fifteen minutes.119
Generally, non-exempt employees who are required to remain "on-call" or who are required to remain near the employer's premises so that they cannot use the time effectively for their own personal purposes, are entitled to be compensated for the entire period spent on call.120
New York law does not specifically address on-call time, and New York employers should follow the FSLA provisions above.
An employer must pay employees for time spent on call at a designated location, whether or not the employee is actually called upon to work.121 If an employee is not required to be on call at a designated location but is required to keep the employer informed of his location, or is called upon by the employer to work, the employer must pay the employee from the time the employee is notified of his assignment until the time the assignment is complete.122
Under federal law, employers are not required to compensate non-exempt employees for time spent traveling between the employee's home and the worksite at the beginning and end of the workday.123 However, time spent by a non-exempt employee traveling out of town and back the same day or on a weekend during normal working hours for a work assignment is compensable as hours worked.124
The minimum wage must be paid for employees traveling to the extent that such traveling is part of the duties of the employee.125
An employer must pay an employee for time required or permitted to be traveling for work purposes. "Travel time" does not include the employee's regular commute to and from work, but does include additional time spent commuting when the employer requires or permits the employee to work at a location other than the employee's usual place of employment.126
If the following criteria are met, time spent in training programs, lectures, and meetings does not constitute hours worked: (1) attendance is outside the employee's regular working hours; (2) attendance is entirely voluntary; (3) the course, lecture or meeting is not directly related to the employee's job; and (4) the employee does not perform any productive work during the training.127
There is no specific New York counterpart on compensation for training time. Employers should follow the FLSA.
An employer may pay beginners, learners, and employees under the age of eighteen at a rate of no less than eighty-five percent of the minimum wage for their first two hundred hours of employment. Thereafter, all such employees must be compensated at a rate equal to or greater than the minimum wage.128
Bona fide volunteers, not employees otherwise compensated or coerced to volunteer, are exempt from minimum wage and overtime requirements.1
There is no specific Connecticut counterpart on volunteers. Employers should follow the FLSA.
Person working as a volunteer for a non-profit institution who are not otherwise compensated or emplyed by the institution are exempt from minimum wage and overtime requirements.2
There is no specific New York counterpart on business closures. Employers should follow the FLSA.
There is no specific Connecticut counterpart on business closures. Employers should follow the FLSA.
Employers should have a written policy on jury and witness duty in order to comply with federal and state laws that prohibit disciplining employees for absence from work to serve. Employers may not retaliate in any way against such employees, nor may they cap the length of time that employees may serve. However, there may be a policy that the employees notify employer promptly of their need for leave to fulfill jury or witness duty, provide proof of jury or witness service to be eligible for leave and wages, and that after a certain length of time the employee's jury service will no longer be paid leave.
Employers may not discharge, intimidate or coerce any employee by reason of the employee's jury service in any federal court. Penalties for violation include repayment of lost wages, attorney's fees, and a civil penalty of up to $1,000 per violation.129
If the employer does not intend to pay employees for lengthy jury service, there must be a written policy in place informing employees. Failure to do so will result in having to pay the employee for the entire length of his or her service.130
Employer must allow employees time off from work to serve as jurors. Employees who notify their employers in advance cannot be discharged or otherwise penalized for taking leave from work to attend jury service. Employers with ten or more employees must pay the first $40 of an employee's daily wages for the first three days of jury service. Moreover, it is illegal to force an employee to charge jury duty absence to accrued vacation, personal or sick time. However, employees may choose to substitute a form of paid leave in lieu of unpaid time off to attend to their jury duty obligations. It is likewise illegal for an employer to force an employee to “make up” work days lost as a result of jury service, such as by scheduling the employee to work on days he or she is not normally scheduled to work. Violations are punishable as a criminal contempt of court.131 If an employee is subpoenaed as a witness in a criminal proceeding, it may be criminal jury tampering to compel or attempt to compel the employee to avoid testifying.132 New York permits one automatic postponement of jury service, and requests for postponements should be made by employees at least a week before their scheduled date of appearance.
Employees who receive a summons or serve on a jury may not be threatened or otherwise coerced. Employees may be entitled to back wages and attorneys fees, and violators may be fined or imprisoned. Employers must pay employees who work 30 or more hours a week regular wages for the first five days of jury duty, except for days when the employee would not have earned regular wages.133
Generally, under the FLSA, time doing work without the employer's knowledge or authorization is not compensable as hours worked. However, DOL regulations state that it is the employer's duty to ensure that no work is performed unless authorized by the employer, and the employer must enforce any rules against such unauthorized work.134
Even when an employee does work not required by the employer, he or she may be entitled to be compensated for that work if the employer benefits from the work, or knows or has reason to know that such work is being performed and allows it to continue.135
New York law does not specifically address this issue, and employers should follow the FSLA.
The Connecticut statutes and regulations are silent on work performed without the employer's knowledge. Employers should defer to the federal rules on work performed without the employer's knowledge, which generally require compensation be paid when the employer benefits from the employee's work, or has actual or constructive knowledge of the work being performed and allows the employee to continue by actual or implied consent.
The FLSA does not require employers to provide employees with unpaid meal periods during the workday. If provided, however, "bona fide" meal periods, consisting of 30 minutes or more, are not counted as compensable work time.136
Employees are entitled to one 30-minute unpaid meal period for the "noonday meal period." "Noonday meal period" is recognized as extending from 11 a.m. to 2 p.m. Every person who starts work before 11 a.m. and continues working later than 7 p.m. must receive an additional meal period of at least 20 minutes between 5 p.m. and 7 p.m. 137
For employees working 7˝ or more consecutive hours, at least 30 consecutive minutes of a meal/rest period is required between the first 2 hours and last 2 hours of the workday.138 However, employers and employees may enter into a written agreement providing for a different schedule of meal periods.
Employers are exempt from meal period requirements when (1) compliance would be adverse to public safety, (2) the duties of a position may only be performed by one employee, (3) the employer employs less than five employees on a shift at a single place of business provided the exemption shall only apply to the employees on such shift or (4) the continuous nature of an employer's operations, such as chemical production or research experiments, requires that employees be available to respond to urgent or unusual conditions at all times and such employees are compensated for break and meal periods.172
The FLSA does not require an employer to provide rest periods for its employees. The federal regulations do specify, however, that if an employer provides rest periods, the employer must count the rest periods as hours worked (unless the employee is relieved of all duty for purposes of eating regular meals).139
According to the Department of Labor, only employers operating such establishments as factories, hotels, restaurants, etc., must provide their employees with twenty-four consecutive hours of rest in any calendar week.140
The Connecticut statutes and regulations are silent on rest periods, as distinguished from breaks for meals which are required (see Section K above). Employers should follow the federal rules.
Beyond the required overtime premium for all hours worked after 40 in one week,141 the FSLA does not provide for premium pay.
Employers are required to pay employees an hour of extra pay at the minimum wage rate, in addition to the minimum wage rate, for each hour that the employee works more than ten hours per day.142
Premium rates of pay are considered to be overtime, and may be no less than one and one-half times the established rate of pay.143
The FLSA does not allow private employers to pay for overtime work using time-off. But, because an employer is permitted to control the amount of time an employee works, an employer may restrict the employee's workweek hours to 40 or under by the use of mandatory compensatory time off within the particular workweek.144
Payment in the form of compensatory time off is not permitted in lieu of paid overtime for non-exempt employees. However, according to the Department of Labor, an employer may restrict a non-exempt employee's workweek hours to 40 or under by the use of mandatory compensatory time off during that same workweek. Thus, if a non-exempt employee who is normally scheduled to work five eight-hour shifts during the week works a ten hour workday, the employer may give the employee two hours of compensatory time off on a different workday during the same workweek in lieu of overtime, provided the employee does not exceed 40 hours during that week. If an employee works more than 40 hours per week, an employer cannot give compensatory time off instead of overtime pay.145
Non-exempt employees who work more than forty hours per week must be paid for additional hours at a rate of one and one-half times the regular rate.146 Thus, compensatory time off is not permitted in lieu of overtime pay. Like the FSLA, nothing in the Connecticut statutes prohibits an employer from limiting its employees' workweek to forty hours through mandatory compensatory time off.
While the FSLA contains no provisions unique to telecommuting employees, employers must nevertheless comply with all applicable federal wage and hour laws for employees who work from their homes or automobiles, including provisions governing overtime and record-keeping.
There are no express statutory provisions regarding "telecommuting." New York does, however, have detailed "industrial homework" laws, which apply to factory workers, garment workers, etc., who manufacture products at home for an employer.
The Connecticut statutes and regulations are silent on telecommuting. However, there are statutes governing in-home manufacturing of products and other industrial homework.147
The FSLA is silent as to the timing and manner of paying wages, which is most often regulated by state statutes.
For clerical workers and other employees who are not bona fide executive, administrative or professional employees earning in excess of $600 per week, wages are due not less frequently than semi-monthly, on regular paydays designated by the employer.148
The only deductions from pay authorized are: (i) those required by law or regulation, such as withholding taxes and garnishment orders; or (ii) are authorized in writing by the employee to pay insurance premiums, pension or health and welfare benefits, charitable contributions, payments for U.S. Savings Bonds, labor union dues, and similar payments for be benefit of the employee. The record of the authorization must be kept on file on the employer's premises. No other charges against wages are permitted, even if the employee has damaged or taken the employer's property. 149
The New York Court of Appeals recently held that a national temporary employment firm violated New York law by deducting fees of $1.00-$1.99 from the pay of workers who opted to use company vouchers to obtain their wages in cash from company "dispensing machines."173 The court found that the defendant's fee was not similar to those authorized by New York law. It rejected the defendant's argument that receipt of the voucher and cashing it were separate transactions because the voucher could not be negotiated until the employee used the cash dispensing machine. Further, the defendant benefited from the fees charged to employees, which the court held to be an inequity that the state legislature sought to prevent with wage payment laws.
Employers are required to pay wages weekly (unless less frequent paydays have been authorized by the Commissioner of Labor150) by cash, negotiable check, or direct deposit. If a payday falls on a non-workday, wages must be paid on the preceding day.151 Even in a wage dispute, an employer must pay the undisputed part of the wages on time to all employees, exempt and non-exempt.152
An employer may withhold or divert wages only if: (1) state or federal law requires or authorizes the employer to do so; (2) an employee provides written authorization for the deductions on a form that meets the Commissioner's approval; or (3) an employee provides written authorization for deduction for medical expenses, without benefit to employer, and the deduction is recorded in employer's wage records.153 Deductions may not be made before the regular payday or as a condition of continued employment. Withholding any part of wages because an agreement requiring notice before leaving employment is prohibited.154
Employers cannot request or require reimbursement from employees for any loss or shortage incurred as a result of a customer's wrongdoing.155
For employees subject to minimum wage and overtime provisions, the FSLA requires that employees keep records indicating an employee's name, social security number, date of birth (if employee if under 19 years of age), address, gender, occupation, time and day workweek begins, regular rate of pay (including basis of calculation and amounts excluded from calculation), hours worked in each day and each week, compensation (i.e., total wages, total daily or weekly straight-time wages, total premium pay for overtime hours, additions to pay), wage deductions (including employee purchase orders and wage assignments), and paydays (including dates of payment and dates of pay periods). These records are to be retained for at least three year. 156
Among other records, each employer is required to keep a "time book" showing the names and addresses of all employees and the hours worked by each non-exempt employee in each day.157
An employer must keep true and accurate records of hours worked and wages paid for each employee for at least 3 years, at the place of employment.158 They must be available for inspection by the Commissioner. An employer who refuses to admit a Commissioner's representative into a place of employment to conduct an investigation or refuses to furnish wage and payroll records or who hinders, obstructs, or delays an investigation is subject to penalties.159
The FSLA prohibits discrimination against an employee because he or she has filed a complaint or instituted or testified in a proceeding related to its provisions.160 The Second Circuit Court of Appeals has limited this anti-retaliation provision to apply to formal complaints or proceedings; it does not apply to adverse actions taken in response to an employee's complaint to a supervisor.161
Retaliation claims in general are covered in greater detail in Chapter XIV.
It is a misdemeanor for an employer to discharge or otherwise discriminate against any employee because the employee has: (1) complained about a violation of the minimum wage law; (2) instituted proceedings pursuant to that law; or (3) testified in an investigation or proceeding under the law.162
An employer is prohibited from discriminating against an employee because of the employee's testimony or participation in an investigation or proceeding before the wage board or related proceeding. The fine for each offense is between one hundred and four hundred dollars.163
Employers, including their officers and directors, held to be in violation of the FLSA may be liable for the amount of the unpaid minimum wages or overtime and an equal amount in liquidated damages.164 Successful plaintiffs may also recover attorneys' fees and costs.165 In addition to civil suits brought by the Department of Labor or private individuals, the Department of Justice may bring criminal actions for willful violations of the statute which can result in fines up to $10,000 and, for a second conviction, a prison sentence of up to six months.166
In addition to providing for recovery of wages, the New York Labor Law permits employees to claim costs, attorneys' fees and, in the case of willful violations, liquidated damages equal to twenty-five percent of the wages found to be due.167 New York law also provides for civil penalties of $50 for each violation of the wage laws168 and criminal sanctions of up to $10,000 or imprisonment for up to one year.169
An employer who fails to pay overtime when it is due, or pays less than the minimum wage is subject to a civil suit by the employee, who may recover twice the amount owed.170 An employer who agrees to pay less than minimum wage to an employee is subject to a fine and imprisonment in proportion to the amount of unpaid wages owed and the number of offenses.171
109 The New York Department of Labor's Internet site is www.labor.state.ny.us. To obtain the Minimum Wage Posters and Wage Summaries, go to http://www.labor.state.ny.us/workerprotection/laborstandards/employer/posters.shtm.
110 Conn. Gen. Stat. §§ 31-58 to 31-76m. The Connecticut Department of Labor's Internet site is www.ctdol.state.ct.us.
111 Conn. Gen. Stat. § 31-58(j).
114 N.Y. Labor Law §§ 190(7) and 191(d).
115 New York State Department of Labor.
117 Conn. Gen. Stat. § 31-76(c), 31-76(e).
118 New York State Department of Labor; 12 N.Y.C.R.R. §142-2.3.
119 Conn. Agencies Regs. § 31-60-11(a).
121 Conn. Agencies Regs. § 31-60-11(b).
122 Conn. Agencies Regs. § 31-60-11(c).
123 29 U.S.C. § 254(a); 29 C.F.R. § 785.35.
124 29 U.S.C. §§ 785.37-785.38.
125 12 N.Y.C.R.R. § 142-2.1(d).
126 Conn. Agencies Regs. § 31-60-10(a)-(d).
128 Conn. Gen. Stat. § 31-58(j).
130 United .States v. Adamita, 701 F. Supp. 85 (S.D.N.Y. 1988).
133 Conn. Gen. Stat. § 51-247a (compensation); § 51-247a (no threats or coercion).
135 29 C.F.R. § 785.11, 785.12.
137 N.Y. Labor Law §§ 162(3) to (5). The New York Department of Labor's guidance on meal periods can be located at http://www.labor.state.ny.us/html/employer/meals.html.
138 Conn. Gen. Stat. § 31-51ii.
142 12 N.Y.C.R.R. § 142-2.3. The same applies to a split shift, a scheduled workday in which the hours required or permitted to be worked are not consecutive. A meal period of one hour or less is not considered to be an interruption in a shift. If the employee's wage rate multiplied by the number of hours actually worked during that week is equal to or greater than the minimum wage multiplied by the number of hours the employee actually worked during that week plus any hours not worked but awarded for split shift and/or working more than ten hours during a day, then the employer does not need to pay for the hours not worked. Thus, the New York Department of Labor's enforcement policy creates a "pay floor" which is satisfied if an employee' total actual pay exceeds the minimum wage multiplied by actual hours worked plus one hour for each split shift.
143 Conn. Gen. Stat. § 31-76b(1).
144 N.Y. Lab. Law § 652(1); 29 U.S.C. §206.
146 Conn. Gen. Stat. § 31-76(c).
147 Conn. Gen. Stat. § 31- 29 to 31 - 33.
150 Conn. Gen.. Stat. § 31-71i provides that upon application to the Commissioner of Labor, the provisions in § 31-71b, which require weekly payment of wages, may be waived with respect to any particular week or weeks and may also, upon application, be waived to permit the establishment of regular pay days less frequently than weekly provided each employee affected shall be paid in full at least once in each calendar month on a regular established schedule.
151 Conn. Gen. Stat. § 31-71b(b).
152 Conn. Gen. Stat. § 31-71c(a) and (c).
153 Conn. Gen. Stat. § 31-71e.
155 Conn. Gen. Stat. § 31-51hh.
159 Conn. Gen. Stat. § 31-69(c).
161 Lambert v. Genesee Hosp., 10 F.3d 46 (2d Cir. 1993). Eight other Circuit Courts of Appeals, however, have held that informal complaints entitle employees to coverage under the anti-retaliation provisions of the FSLA. See Lambert v. Ackerley, 180 F.3d 997, 1003 (9th Cir. 1999) (collecting cases).
163 Conn. Gen. Stat. § 31-69(a).
171 Conn. Gen. Stat. § 31-69(b).
172 Conn. Gen. Stat. § 31-51ii
172 Angello v. Labor Ready Inc., 7 N.Y.3d 579 (N.Y. App. Div. 2006).
1 29 U.S.C. § 203(g); see also Tony & Susan Alamo Found. v. Secretary of Labor, 471 U.S. 290 (1985) (considering whether volunteers were subject to the FLSA); see also DOL Opinion Letter, 2001 WL 1870384 (July 31, 2001) (considering factors such as nature of business entity receiving services; the receipt by the worker (or expectation thereof) of any benefits from those for whom the services are performed; whether the activity is less than a full-time occupation; whether regular employees are displaced; whether the services are offered freely without pressure or coercion; and whether the services are of the kind typically associated with volunteer work).
2 12 N.Y.C.R.R. § 142-3.12.