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Pursuing an FLSA claim: many employers have figured out how to skirt the requirements of the Fair Labor Standards Act. Here's how to ensure that your client gets a decent day's pay for a decent day's work.

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Charles Dickens's descriptions of England's 19th-century sweatshops in novels like Hard Times are chilling. Here in the modern-day United States, we tend to believe that the days of our own robber barons--who built their rail, steel, oil, cotton, tobacco, and manufacturing fortunes on the backs of grossly underpaid and ill-treated laborers--are distasteful memories, not to be compared to today's more enlightened age.

Well, it may be time to wake up and smell the Starbucks. Wage abuses by corporate America occur regularly in other countries--witness Nike's debacle in Southeast Asia--and an alarmingly large number of American workers are being systematically cheated out of wages, breaks, mealtimes, overtime, and other rights guaranteed under state and federal labor laws. And it is happening in both blue- and white-collar jobs. While less obvious than the brutal practices of the robber barons, these abuses are no less un-American, and they call for a response from lawyers committed to justice for all workers.

In 1938, Congress passed the Fair Labor Standards Act (FLSA) to provide a minimum standard for wage payment and a maximum standard for work hours for "the maintenance of the minimum standard of living" and "to protect all covered workers from substandard wages and oppressive working hours." (1) FLSA establishes the "minimum" level of acceptable employment conditions, not a pervasive scheme of employment standards. Nor does it preclude application of nonconflicting state labor laws that give workers greater benefits or remedies.

The act contains five significant forms of worker protection:

* a minimum wage (currently $6.55 per hour)

* overtime pay (employers must pay one and a half times the regular hourly rate for any hour that an employee works in excess of the standard 40-hour work week)

* record-keeping by employers to confirm FLSA compliance

* child labor protection

* equal pay for equal work

For employment lawyers, the first three are of key importance.

American employers frequently violate FLSA, usually cutting comers in order to slash payroll expenses without also cutting back on the hours of work performed. Employers are trying to do the nearly impossible--holding payroll expenses down while increasing labor hours worked. They do so using several different methods: "shaving" employee time off submitted time cards, "moving" hours an employee has worked one week to the next week to avoid overtime, refusing to provide meal or rest breaks, and failing to pay employees for required on-site or off-site work activities.

For example, employers may require that employees arrive at work early to do prep work, start or warm up equipment, or put on protective clothing, but forbid them from clocking in until their shift begins or the business opens. Similarly, they may refuse to pay for off-site activities like making deliveries, running errands, checking competitor prices, doing laundry, fielding work-related telephone calls while off duty, or simply being on call.

Understanding the law

Understanding the specific terms of FLSA is crucial to investigating a violation. Under the act, an "employer" is any construction, retail, or service business with an annual budget of more than $500,000, including hospitals, health care facilities, and public agencies. Not-for-profit [section] 501 (c) (3) charitable or religious organizations are excluded, as are family businesses where all employees are family members.

By design, [section] 203 of the act broadly defines an "employer" as "any person acting directly or indirectly in the interest of an employer in relation to an employee." (2) Thus, any officer with sufficient operational control--or more than one of them--can be deemed the "employer" along with the corporation and be held jointly and severally liable for any labor violations.

An "employee" is someone whom the employer "suffers or permits" to work, (3) and the employer must designate and record the starting date and hour of the "work week." Once designated, this definition may not be changed, except under specific circumstances. (4)

A work week consists of seven 24-hour periods, beginning with the designated start time and start day. The...