Minimum Working Conditions
The federal Fair Labour Standards Act (“FLSA”), regulates wages, working hours and overtime pay for covered employees. Certain employees employed in “executive, administrative or professional” positions are not covered under the FLSA and are deemed “exempt” from its requirements. Other categories of employees are also “exempt” under the FLSA. These include, among others, outside sales employees, certain skilled computer professionals, employees of certain seasonal amusement and recreational businesses, causal babysitters and persons employed as companions to the elderly or infirm. Other categories of employees are exempt from the FLSA’s overtime pay requirements only.
The FLSA sets forth a (national) minimum wage for all non-exempt employees of $7.25 per hour. On September 30, 2022, the Department of Labour (“DOL”) published a Notice of Proposed Rulemaking announcing that, beginning January 1, 2023, the minimum wage rate directed by President Joseph Biden’s April 27, 2021 Executive Order 14026 will increase to $16.20 per hour (Minimum Wage for Federal Contracts Covered by Executive Order 14026, Notice of Rate Change in Effect as of January 1, 2023). This Executive Order minimum wage generally applies to workers performing work on or in connection with federal contracts that are entered into, renewed, or extended (pursuant to an option or otherwise) on or after January 30, 2022, in certain categories. Additionally, beginning January 1, 2023, tipped employees performing work on or in connection with contracts covered by former President Barack Obama’s Executive Order 14026 generally must be paid a minimum cash wage of $13.75 per hour.
States are free to legislate a higher minimum wage. The majority of U.S. states have minimum wage rates above the federal standard. As of January 1, 2023, 30 states and the District of Colombia have a minimum wage higher than the national minimum. For example, California’s minimum wage for non-exempt employees is $15.50 per hour as of January 1, 2023. Some cities impose higher minimum wage rates for employees that work for employers in the municipal areas of those cities. For example, in San Francisco, the minimum wage is $18.07 per hour as of July 2023.
Maximum Working Week
American workplace law does not impose maximum working hours. However, many state statutes mandate daily rest periods as well as a one-day rest period each week; generally requiring that employees who work more than four hours per day receive a break of at least 10 minutes for every hour worked. Also, many states require an unpaid meal break of at least 30 minutes after employees worked a set number of hours per day (threshold working hours generally ranging from five to eight). Furthermore, several states mandate that employee receive at least one day off in each seven-day period.
Under the FLSA, non-exempt employees must receive one-and-one-half times (1.5X) their “regular rate” of pay for all hours worked in excess of 40 hours per week. Generally, non-working time, including leaves of absence, rest periods, holidays and vacation time, is not counted toward the 40-hour-a-week overtime threshold. An employee’s “regular rate” may be higher than their standard hourly rate, as it may include other forms of compensation, such as non-discretionary bonuses.
Employer’s Obligation to Provide a Healthy and Safe Workplace
The Occupational Safety and Health Act (“OSHA”) requires employers to provide employees with a safe and healthy place of employment, which is free from recognised hazards (death or serious physical harm). The OSHA regulations govern a wide variety of workplace conditions, and require employers: a) to remedy known workplace hazards; b) to limit the amount of hazardous chemicals workers can be exposed to; c) to use certain safe practices and equipment; and d) to monitor hazards and keep records of workplace injuries and illnesses.
Regarding the COVID-19 pandemic, the U.S. Center for Disease Control (CDC) has issued Guidance with detailed instructions on cleaning and disinfecting public spaces, workplaces, businesses, schools, and homes. The Guidance includes a Cleaning and Disinfection Decision Tool that distills the advice into a flow chart with different recommendations depending on whether the area is indoors, outdoors, frequently used, and the type of surface involved.
There are several ways that the Occupational Safety and Health Administration, the government agency responsible for enforcing the OSH Act, may initiate an inspection of an employer’s facility or worksite:
- Imminent Danger: these inspections are initiated upon OSHA learning of a hazard that could potentially cause death or serious bodily harm at a worksite.
- Fatalities or Catastrophes: these types of inspections will be initiated following an employer report of a work-related fatality or in-patient hospitalisation of one or more employees.
- Complaints: complaint inspections are initiated as a result of employees contacting the agency to raise safety and health concerns. Complaint inspections are increasingly common. Employees are offered anonymity for these complaints and can now make them with the click of a button over the internet.
- Referrals: referral inspections are similar to complaint inspections, except the safety and health concerns come from other agencies or individuals outside of the company.
- Programmed Inspections: these inspections are aimed at specific high-hazard industries or workplaces that have exhibited high rates of injuries or illnesses.
Protection from Retaliation
Any employee who believes that he or she has been discharged or retaliated against as a result of engaging in protected activity, such as reporting potentially unsafe working conditions, may file a whistleblower complaint with the Occupational Safety and Health Administration. The complaint does not have to be filed in writing or be particularly detailed or specific in nature. The complaint must be filed, however, within 30 days of the discharge or other retaliatory conduct. Thus, in addition to ensuring overall compliance with OSHA safety and health standards, employers need to ensure that they have strong internal programs to encourage employees to voice safety and health complaints and do so without fear of retaliation.