The Fair Labor Standards Act (FLSA) is a federal law that requires employers to pay its employees minimum wage and overtime. Some employees are exempt from the minimum wage and overtime requirements, as provided in the FLSA. States also have their own wage and hours laws. When there is a difference between applicable federal and state law, the law which governs is that most favorable to the employee. Federal law does not preempt or displace state law in the wage hour area.

Nevertheless, some factors may require federal law to be applied. For example, in states with minimum wage rates less than those required under federal law, the FLSA generally controls the wages of non-exempt employees within its scope.

However, if an employee is subject to one of the exemptions under federal legislation, then state law may control. For example, an employee may be subject to both federal and state laws but be exempt from minimum wages under the FLSA by reason of his bona fide administrative status. If the employee is not similarly exempt under the state law, he may be paid the state minimum wage even though it is less than the federal minimum.

As a practical matter, state wage hour provisions often mirror those contained in the FLSA. For example, many state minimum wage laws adopt the federal minimum as the floor for the wages of covered employees.

Special Compensation Rules

Some states have special compensation rules, known as wage orders, which establish different minimum wage rates for employees in certain industries. If the wage order rate exceeds the federal minimum, it controls. Thus, state law may govern in the particular case even though the federal and state requirements may initially appear to be identical.

Although wage orders also contain overtime requirements, state premium pay is more often dictated by state law. Typically, state overtime rules do not differ from their federal counterparts: overtime compensation must be paid at one and one half times the employee's regular rate of pay for all hours worked in excess of 40 in the workweek. A few states have adopted overtime provisions which deviate from this standard. Some impose daily overtime requirements, while others provide that the number of weekly hours required for overtime be greater than the 40-hour standard.

Questions for Your Attorney

  • If the federal wage and hours law conflicts with state wage and hours law, which law controls?
  • If I am a non-exempt worker under the FLSA and my state's required minimum wage is lower than the federal minimum wage, what should be my minimum wage?
  • Do wage orders override the federal minimum wage?

Tagged as: Labor and Employment, Wage and Hour Law, federal law, state law, wage law