FAQs

If a business comes under the Fair Labor Standards Act, the employer must pay at least the federal minimum wage. After a nonexempt worker has worked 40 hours in a continuous 7-day period, the employer must pay that worker a premium — typically one and a half times the hourly rate — for additional hours worked within that period.

Businesses that fall under the FLSA include schools, hospitals, government agencies, and companies that engage in interstate commerce and do at least $500,000 worth of business annually.

There are two types of employees: those exempt from FLSA overtime rules and those who are nonexempt (to whom the rules apply). An exempt employee draws a salary of at least $684 per week and most often carries out executive, administrative, professional, computer or sales functions. A nonexempt employee is an hourly wage worker whose duties are traditionally “blue collar.” Employers may require unpaid overtime work from exempt employees. However, employers covered by FLSA must pay nonexempt employees time and a half for overtime.

Misclassification occurs when an employer lists a worker who fulfills nonexempt duties as an exempt employee to avoid paid overtime. For example, paying an office worker as an exempt administrator when the worker completes receptionist/secretarial tasks rather than administrative duties is an example of misclassification.

Misclassification is a major wage and hour violation. Still, employers also short their workers by failing to count hours worked accurately and miscalculating the hourly rate for overtime.

In Georgia, the state minimum wage is $5.15 an hour, but businesses subject to the Fair Labor Standards Act must pay the federal minimum wage of $7.25 an hour. Therefore, if your employer is subject to the FLSA, but has only paid you the Georgia minimum wage, you can make a claim for the difference and may even be eligible for additional compensation as damages.

Certain businesses are allowed to pay less than the Georgia minimum wage. These include companies with sales of $40,000 per year or less; companies with five employees or fewer; direct employers of domestic workers (not through a service); farm owners; employers whose workers earn gratuities. In addition, certain employees, such as high school and college students, can legally earn less than the Georgia minimum wage.

No. Tips are entirely the property of the employees. Employers can require workers to pool tips or to tip out to other workers. However, tips can only be shared among employees who regularly receive tips. For example, requiring a food server to tip a cook, dishwasher, or manager is prohibited and destroys the tip credit allowance.

Georgia has no law requiring an employer to pay the balance of an employee’s earnings on the employee’s last day of work. Depending on when you quit or are fired, you may have to wait for one or more pay cycles to get paid in full. If your employer does not provide your back pay as scheduled, you may have to seek assistance from the Georgia Department of Labor or an employment lawyer.

Generally speaking, FLSA covers “blue-collar” workers who earn a wage (i.e., are paid at an hourly rate), but not “white-collar” workers who earn a set salary above $684 per week or receive the bulk of their compensation through sales commissions. Workers are exempt (not covered by overtime laws) if they fit into one of several categories, primarily executive, administrative, professional, computer employee, outside sales, or highly compensated employees. Each category has a “duties test,” which a worker must pass to be exempt from overtime. If an employer designates a worker as an administrator, but that worker does not perform administrative duties, that worker may not be exempt from the overtime requirement.

A nonexempt employee is entitled to overtime whenever they have worked more than 40 hours within a week, calculated as a continuous seven-day work period. The FLSA does not have a daily overtime limit for workers who exceed eight hours a day, nor does the state of Georgia have such a law.

The FLSA does not prohibit employers from requiring overtime for workers over 16 years of age. It only requires that employers pay the required overtime rate to nonexempt employees.

FLSA does not require overtime for special days, but many collective bargaining agreements contain such benefits. It’s important to distinguish legal rights under FLSA that cover all nonexempt workers from benefits that individual unions have secured for their membership through collective bargaining.

The FLSA considers the cost of required uniforms to be a business expense of the employer. However, employers can require workers to bear the purchase and maintenance costs, provided this does not reduce the worker’s wage below the federal minimum wage. This same rule applies to reimbursement for other losses, such as merchandise spoliation and cash register shortages.

The enforcement provisions within the FLSA allow employees to recover back wages plus an equal amount for liquidated damages and attorney’s fees, and court costs. Effectively, this allows an employee to receive twice what the employer owes without incurring legal expenses.

Once an allegation is made, the investigation should begin as soon as possible. Delays in opening an inquiry can be detrimental to the investigation process. Witnesses may leave or become unavailable. Records may be lost or destroyed. Electronic evidence may become corrupt and unusable. Individuals’ memories of important details may fade. If you need assistance with a workplace investigation, call the DCBFB attorneys for experienced investigators.

The first step is to define what is to be investigated, including any legal or regulatory limits to the investigatory methods. For example, the federal Polygraph Protection Act usually prohibits private employers from using deception-detection technology. But no similar prohibition binds state and local government employers. If a matter under investigation might have criminal law implications, the employer must determine whether an employee’s Fifth Amendment right against self-incrimination is implicated and how to obtain the information without making eventual criminal prosecution impossible. If the employer has a union contract, this also may have some bearing on the investigative techniques. Other questions need to be answered such as whether to allow an employee to have an employee witness, union representative, or even a personal attorney present during investigatory interviews. Should you allow an employee to record the interview? Should the employer record the interview? What assurances should you provide to the interviewee?

The next step is to prepare to conduct the interview process: The setting for the investigatory interviews is important. First, one must select a location that can ensure privacy and comfort for both the witness and the investigator. Then, usually starting with the accusing party, the investigator will prepare the questions carefully, examining each witness’s performance and discipline history, and staying alert to any facts or circumstances that might affect the witness’s objectivity, truthfulness, or ability to observe and reliably comment upon the alleged facts. The investigator prepares for each interview, including the accuser, the accused, and each witness they name. The investigator outlines the particular topics on which he will question each witness to ensure every fact relevant to the outcome of the investigation and the recommendations to be made are thoroughly and impartially examined.

The investigator then conducts each interview, usually starting with the accuser, followed by the accused. This allows the investigator to focus the investigation, establishing reference points for broadly framing the factual issues, identifying potential witnesses, and relevant documents likely to yield useful evidence. The investigator decides when and how hard to press the witness, whether to confront them with perceived inconsistencies in their accounts when to loop back and re-interview other witnesses. Once each individual likely to know relevant facts has been interviewed, both the accuser and the accused are assured of internal due process in the investigation, and the organization can be confident about the results reported.

Finally, the investigator prepares a report making findings and recommendations to the organization that retained them. The investigator’s report must ensure that the questions posed at the beginning of the investigation have been examined and must report upon them. S/he also must consider whether the report is likely to become public, such as where the investigation is conducted on behalf of a governmental employer. This will determine the phrasing and the detail included in the report and its recommendations.

Our firm counsels employers on the adoption of proactive measures they can take to avoid legal liability and to avert potential management problems, including:

• Using employee handbooks and other methods of employee communication to clarify that unethical or illegal conduct such as unlawful discrimination and harassment will not be tolerated and will be stopped.
• Establishing anti-discrimination training for managers and employees.
• Ensure all employees, managers, and executives understand the process for reporting complaints and their individual responsibilities when they learn of such complaints or problems.

We offer comprehensive reviews of company policies and can guide you about other possible prevention strategies.

Private businesses don’t usually maintain trained investigators on their staff. Even if they do, leaving the investigation to inside employees opens the results to the appearance of bias and cover-up. Utilizing outside investigators assures more independence and objectivity in the investigatory process. This affords greater credibility to the results. Outside investigators are less susceptible to control or influence from managers or executives having an interest in the outcome. Their loyalty is owed to the organization that hires them to find the unvarnished truth about the investigation. Outside investigators can ask the hard questions that insider investigators would hesitate to examine. This allows them to expose matters that powerful executives would prefer to keep hidden for reasons that do not serve the organization’s best interests.

Different types of issues require different types of investigative expertise. Like any public employer, the police department can be investigated for many violations, including but not limited to whistle-blower complaints, unlawful discrimination, harassment charges, wage-hour violations, and unlawful retaliation. Most law enforcement departments maintain internal bureaus or offices to investigate police misconduct. These commonly are designated the “Internal Affairs Office” or “Office of Professional Standards.” Individuals assigned to these offices are specially trained to investigate and determine whether law enforcement officers have violated criminal laws or their departments’ internal standing orders or standard operating procedures.

Internal affairs investigators are excellent at investigating allegations of criminal and other misconduct involving law enforcement ethics. These investigators frequently receive specialized POST-certified training that focuses on criminal and internal administrative matters. However, they usually receive little or no training in employment or labor law issues. Thus, they are not equipped to inquire into whistle-blower complaints, unlawful discrimination, or harassment charges. Claims of wage-hour law violations and unlawful retaliation usually are beyond what they learn in most internal affairs investigation courses. Our firm is uniquely equipped to assist law enforcement agencies in such cases. Our attorneys are experts in federal and state labor and employment law –especially those laws and regulations affecting police and sheriff’s agencies.

Federal statutes that guard against wrongful termination include Title VII of the Civil Rights Act of 1964, The Age Discrimination in Employment Act of 1967, The Pregnancy Discrimination Act of 1978, The Whistleblower Protection Act of 1989, and the Americans with Disabilities Act of 1990. Under these laws, you cannot be fired or treated materially differently based on:

• Age
• Color
• Disability
• Gender / Sex / Sexual orientation
• Nation of origin
• Pregnancy
• Race
• Religion
• Whistleblowing activity

These laws also protect against firings in retaliation for asserting any federally protected employment right. The state of Georgia has its own statutes that provide additional protections.

Employers cannot fire workers for discriminatory reasons, such as:

• A female employee who becomes pregnant
• An employee who files a sexual harassment complaint
• An employee who alerts the Environmental Protection Agency about the company’s illegal dumping
• A Worker who requests an accommodation for a disability
• A worker who converts to a religion the employer finds disagreeable

These cases generally arise when an employer fires a worker who refuses to violate the law. For example, if an employer fired a supervisor for refusing to pay undocumented workers under the table.

The nature of at-will employment is that a worker can be fired at any time for any reason or no reason, except that they cannot be fired for an illegal reason.

A worker can receive damages and injunctive relief in a suit for wrongful termination. These include:

• Back pay
• Lost benefits
• Costs of searching for a new job
• Pain and suffering
• Reinstatement
• Attorney’s fees and court costs
• Punitive damages

Federal law caps the worker’s recovery of compensatory damages, such as pain and suffering and job search expenses, based on the size of the employer’s company.

When an employer harasses a worker so that they must resign to preserve mental and physical health, the court could find that the worker was “constructively terminated.” However, to be actionable, the harassment had to violate employment law or the employee’s contract. Simply being a bad boss is not enough.