Legal Question in Employment Law in New York

Re: Does F.S.L.A. apply to office manager of general contractor?

I received your question on 4/2/2001. My initial comments, which are provided for informational purposes only, are as follows:

The Fair Labor Standards Act, 29 U.S.C.S. � 201 et seq., entitles employees to time-and-a-half overtime for hours worked in excess of 40 hours per week, 29 U.S.C.S. � 207(a)(1), except for those employees employed in a bona fide executive, administrative, or professional capacity, 29 U.S.C.S. � 213(a)(1). The Secretary of Labor has broad authority to define and delimit the scope of the exemption for executive, administrative, and professional employees. 29 U.S.C.S. � 213(a)(1).

Regulations promulgated by the Secretary of Labor provide that an employee is employed in a bona fide executive, administrative, or professional capacity only if he or she is compensated on a "salary basis." 29 C.F.R. �� 541.1(f), 541.2(e), 541.3(e). An employee will be considered to be paid on a salary basis if under his employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. 29 C.F.R. � 541.118(a).

The statute of limitations for FLSA back wages is two years (or three years if the employer acted willfully). See 29 U.S.C. � 255 (1994). The longest statute of limitations that might apply to any of the manager�s possible state law claims is six years. See N.Y. Lab. Law � 198.3 (McKinney Supp. 1999) (providing a six year statute of limitations on employee claims for unpaid wages); N.Y. C.P.L.R. �� 213.2, 213.8 (McKinney 1990) (providing a six year statute of limitations on claims for "actions upon a contractual obligation" and for "actions based upon fraud").

As the foregoing indicates, whether the FLSA applies to the manager in question and the limitations period within which she must bring her claim depends upon the specific facts of her employment.

I hope this information is helpful and I would be happy to discuss this matter with you in greater detail. You may contact me at [email protected].