US Department of Labor finds San Bernardino roofing, painting contractor denied employees overtime pay

The Fair Labor Standards Act (FLSA) is a federal law that sets nationwide basic protections for most workers in the private sector and in federal, state, and local government. It:

• Establishes a federal minimum wage (currently $7.25/hour) that covered, non‑exempt workers must receive for every hour worked.
• Requires overtime pay of at least 1.5 times the regular rate of pay for covered, non‑exempt employees who work more than 40 hours in a workweek.
• Sets child labor rules that limit the hours and types of work minors can perform, to protect their health and education.
• Requires employers to keep accurate records of hours worked and wages paid and to post official notices of workers’ rights. Other laws and DOL regulations built on the FLSA also protect workers from retaliation for asserting their rights. If state or local laws give greater protections (for example, a higher minimum wage), workers are entitled to the higher standard.

The Wage and Hour Division (WHD) is the part of the U.S. Department of Labor that enforces the FLSA’s minimum wage, overtime, recordkeeping, and child‑labor rules, along with several other worker‑protection laws. Its mission is to "promote and achieve compliance with labor standards" to protect workers.

How it enforces violations:

• WHD investigators, based in offices across the country, conduct investigations. Cases often start with confidential worker complaints, but WHD also targets certain industries or employers on its own.
• In an investigation, WHD meets with the employer, reviews payroll and time records, and privately interviews employees to see if the law is being followed.
• If violations are found, WHD can supervise payment of back wages to employees and require changes to pay and timekeeping practices.
• For willful or repeated violations, WHD can assess civil money penalties in addition to back wages.
• The Secretary of Labor can sue in court for back wages and liquidated damages or seek injunctions to stop ongoing violations, and employees can also file their own lawsuits. Retaliation against workers for complaining or cooperating with WHD is itself illegal.

The Payroll Audit Independent Determination (PAID) program is a voluntary U.S. Department of Labor initiative that lets employers self‑report and fix certain wage violations under the FLSA and some Family and Medical Leave Act (FMLA) provisions.

How employers use it:

• The employer conducts a self‑audit of its pay practices to identify potential minimum‑wage, overtime, or FMLA‑related violations.
• If issues are found, the employer submits information to WHD through the PAID program (following DOL’s instructions and eligibility limits).
• WHD reviews the audit, works with the employer to determine the amount of back wages owed, and oversees payment to affected employees.
• When properly used, PAID is designed to get workers their back wages quickly and help employers resolve problems while avoiding litigation and some additional penalties that might arise in contested enforcement or lawsuits.

In this case, WHD found that Howard & Sons failed to pay overtime for certain hours worked (pre‑ and post‑shift tasks, extra hours beyond schedule, and Saturday work). Under the FLSA, covered non‑exempt workers must receive overtime at least 1.5 times their regular rate for all hours over 40 in a workweek.

Back wages ($267,177):

• Investigators determine, for each affected employee, how many hours were worked but not properly paid as overtime.
• For those hours, they calculate the difference between what was actually paid and what should have been paid at the FLSA overtime rate.
• The total back wages is the sum of those underpayments across all 62 employees. The news release gives the total amount but does not publish a worker‑by‑worker or week‑by‑week breakdown, so the exact step‑by‑step arithmetic is not publicly available.

Civil penalty ($53,010):

• For repeated or willful minimum wage or overtime violations, the FLSA allows WHD to impose civil money penalties up to a set maximum amount per violation (these maximums are periodically adjusted for inflation).
• WHD’s FLSA guidance lists a per‑violation cap for repeated or willful violations of sections 206 or 207 (minimum wage/overtime), and the Howard & Sons release states the penalty was imposed "to address the willful nature of the violations."
• WHD has discretion, within those legal caps, to decide how many violations to count and what total penalty to assess. The agency has not publicly explained the precise formula or number of violations used to arrive at the specific $53,010 figure.

Under the FLSA, "hours worked" usually means all the time an employee is required to be on the employer’s premises, on duty, or at a prescribed worksite. That includes certain preparatory and concluding activities that are an integral and indispensable part of the main job.

Time spent collecting or returning supplies generally counts as hours worked if:

• The employer requires or expects you to do it (for example, you are told to pick up materials from a store or storage shed, or to drop off equipment after a job), and
• The task is necessary for you to perform your main work, and it is being done for the employer’s benefit, not as a personal errand.

In the Howard & Sons case, DOL explicitly stated that when employees are required to pick up supplies, shop, and set up equipment in preparation for their hands‑on work, "these duties are FLSA hours worked," so that time had to be paid and counted toward overtime.

If an employee is unsure whether a particular activity counts as hours worked, they can:

• Compare their situation to DOL’s general definition of hours worked and the examples in Fact Sheet #22, and
• Use DOL’s online Hours Worked Advisor or contact the Wage and Hour Division for guidance.

Workers can get help or file a complaint with the Wage and Hour Division (WHD) in several ways:

• Call the toll‑free helpline 1‑866‑4US‑WAGE (1‑866‑487‑9243). You will be directed to your nearest WHD office, and staff can answer questions or start the complaint process. The Howard & Sons release lists this number for both workers and employers.
• Contact WHD online or visit/contact a local WHD office; DOL’s "How to File a Complaint" page provides links to local offices and an online contact form.

Key points:

• Complaints are free and confidential. DOL states that the name of the complainant, the nature of the complaint, and even the fact that a complaint exists generally may not be disclosed.
• It is illegal for an employer to retaliate against a worker for filing a complaint or cooperating with an investigation.
• DOL advises workers to gather basic information (employer name and address, type of work, how and when they are paid, etc.) to help WHD investigate.

Beyond the ordered back wages and the $53,010 civil penalty described in the news release, Howard & Sons could, in principle, face additional legal exposure under both federal and state law, although the Department of Labor has not stated that any such further actions are currently being taken.

Under federal FLSA enforcement rules:

• The Secretary of Labor can file a lawsuit in federal court seeking back wages plus an equal amount in "liquidated damages," and can ask a court to issue injunctions to stop ongoing violations.
• Individual employees can file private suits for unpaid wages and liquidated damages, plus attorneys’ fees and court costs.
• Willful violations of the FLSA can, in serious cases, lead to criminal prosecution, with fines and possible imprisonment for repeat offenders.

Separately, many states and localities treat wage theft as a violation of state wage‑and‑hour laws and, increasingly, as a potential crime. State labor agencies or prosecutors can pursue their own civil penalties or criminal charges under state law, and workers may have separate rights to sue in state court.

The publicly available DOL release for Howard & Sons mentions only the federal back‑wage recovery and civil money penalty, so any additional federal or state actions—if they exist—are not disclosed in that document.

To avoid violations like those found at Howard & Sons, employers need timekeeping and recordkeeping systems that capture all hours actually worked and comply with FLSA requirements.

Key legal requirements:

• The FLSA does not mandate a specific timekeeping system, but employers must keep accurate records of each non‑exempt employee’s:
  • Hours worked each day and each workweek
  • Regular hourly rate of pay
  • Total daily or weekly straight‑time earnings
  • Total overtime earnings for the workweek
  • Additions to or deductions from wages
  • Total wages paid each pay period, and the date of payment and pay period covered
• These payroll records generally must be kept for at least three years; more detailed time records (time cards, work schedules, etc.) must be kept for at least two years.

Practical steps employers should take:

• Use a reliable timekeeping system (paper, electronic, or an app) that lets employees record their actual start and stop times, including pre‑ and post‑shift work (such as picking up or returning supplies) and weekend work.
• Clearly instruct employees and supervisors that all required work must be recorded and that off‑the‑clock work is prohibited.
• Ensure travel between job sites, required training, and other compensable time are included in recorded hours.
• Regularly review time and payroll records to identify patterns of unrecorded overtime or adjustments.
• Consider using tools DOL points to, such as the agency’s free timesheet app for Android and iOS, and WHD’s compliance assistance toolkits for industry‑specific guidance.

Following these steps helps meet the FLSA’s recordkeeping rules and reduces the risk of unpaid‑overtime findings like those in the Howard & Sons investigation.