Don’t sleep on state wage and hour laws in 2023, especially if you are a multi-state employer.


I like to tell people who will listen to me, which frequently isn’t even my kids, that I can go into most workplaces and sleuth out at least one wage-and-hour violation.

The Fair Labor Standards Act, the complex federal wage-and-hour law, contains many hidden traps that ensnare even the most seasoned compliance experts.

State minimum wage laws notwithstanding, another problem for unwary businesses is they assume that complying with the FLSA immunizes them from wage and hour issues.

Now, those of you that do business in California and other states that require breaks, daily overtime, and other well-known deviations from federal law already know to tread carefully.

But, the rest of you that operate in states with wage and hour laws that closely mimic the FLSA may not appreciate some of the subtle differences between them.

For example, I read a decision last night from the Oregon Supreme Court involving compensatory time for security screenings.

The plaintiff brought a class action against the defendants, alleging, among other things, that the defendants had violated Oregon’s wage laws by failing to pay employees for time spent in mandatory security screenings at the end of their work shifts. However, the court concluded that Oregon law was like federal law. So, the time that employees spend on the employer’s premises waiting for and undergoing mandatory security screenings before or after their work shifts is compensable only if the screenings are either (1) an integral and indispensable part of the employees’ principal activities or (2) compensable as a matter of contract, custom, or practice.

This decision made me think of one from last year in Pennsylvania involving the same claims and the same defendants. Except, in that case, the Pennsylvania Minimum Wage Act differed from the FLSA in at least one critical aspect. The state law did not have any language qualifying “hours worked.” Therefore, any time that an employer requires an employee to remain on the premises — security screenings included — is compensatory time.

Put simply, the same situation in two different states leads to two completely different outcomes. And this is one of many possible different wage-and-hour outcomes that may hinge on state (or even local) law.

So, pick up the phone (email is ok too, Gen Z), and give your employment lawyer a holler to see if they can help you avoid any hidden wage-and-hour issues that may be lurking for other unsuspecting employers in 2023.

“Doing What’s Right – Not Just What’s Legal”
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