§ 216. — Penalties.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 29USC216]
TITLE 29--LABOR
CHAPTER 8--FAIR LABOR STANDARDS
Sec. 216. Penalties
(a) Fines and imprisonment
Any person who willfully violates any of the provisions of section
215 of this title shall upon conviction thereof be subject to a fine of
not more than $10,000, or to imprisonment for not more than six months,
or both. No person shall be imprisoned under this subsection except for
an offense committed after the conviction of such person for a prior
offense under this subsection.
(b) Damages; right of action; attorney's fees and costs; termination of
right of action
Any employer who violates the provisions of section 206 or section
207 of this title shall be liable to the employee or employees affected
in the amount of their unpaid minimum wages, or their unpaid overtime
compensation, as the case may be, and in an additional equal amount as
liquidated damages. Any employer who violates the provisions of section
215(a)(3) of this title shall be liable for such legal or equitable
relief as may be appropriate to effectuate the purposes of section
215(a)(3) of this title, including without limitation employment,
reinstatement, promotion, and the payment of wages lost and an
additional equal amount as liquidated damages. An action to recover the
liability prescribed in either of the preceding sentences may be
maintained against any employer (including a public agency) in any
Federal or State court of competent jurisdiction by any one or more
employees for and in behalf of himself or themselves and other employees
similarly situated. No employee shall be a party plaintiff to any such
action unless he gives his consent in writing to become such a party and
such consent is filed in the court in which such action is brought. The
court in such action shall, in addition to any judgment awarded to the
plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by
the defendant, and costs of the action. The right provided by this
subsection to bring an action by or on behalf of any employee, and the
right of any employee to become a party plaintiff to any such action,
shall terminate upon the filing of a complaint by the Secretary of Labor
in an action under section 217 of this title in which (1) restraint is
sought of any further delay in the payment of unpaid minimum wages, or
the amount of unpaid overtime compensation, as the case may be, owing to
such employee under section 206 or section 207 of this title by an
employer liable therefor under the provisions of this subsection or (2)
legal or equitable relief is sought as a result of alleged violations of
section 215(a)(3) of this title.
(c) Payment of wages and compensation; waiver of claims; actions by the
Secretary; limitation of actions
The Secretary is authorized to supervise the payment of the unpaid
minimum wages or the unpaid overtime compensation owing to any employee
or employees under section 206 or section 207 of this title, and the
agreement of any employee to accept such payment shall upon payment in
full constitute a waiver by such employee of any right he may have under
subsection (b) of this section to such unpaid minimum wages or unpaid
overtime compensation and an additional equal amount as liquidated
damages. The Secretary may bring an action in any court of competent
jurisdiction to recover the amount of unpaid minimum wages or overtime
compensation and an equal amount as liquidated damages. The right
provided by subsection (b) of this section to bring an action by or on
behalf of any employee to recover the liability specified in the first
sentence of such subsection and of any employee to become a party
plaintiff to any such action shall terminate upon the filing of a
complaint by the Secretary in an action under this subsection in which a
recovery is sought of unpaid minimum wages or unpaid overtime
compensation under sections 206 and 207 of this title or liquidated or
other damages provided by this subsection owing to such employee by an
employer liable under the provisions of subsection (b) of this section,
unless such action is dismissed without prejudice on motion of the
Secretary. Any sums thus recovered by the Secretary of Labor on behalf
of an employee pursuant to this subsection shall be held in a special
deposit account and shall be paid, on order of the Secretary of Labor,
directly to the employee or employees affected. Any such sums not paid
to an employee because of inability to do so within a period of three
years shall be covered into the Treasury of the United States as
miscellaneous receipts. In determining when an action is commenced by
the Secretary of Labor under this subsection for the purposes of the
statutes of limitations provided in section 255(a) of this title, it
shall be considered to be commenced in the case of any individual
claimant on the date when the complaint is filed if he is specifically
named as a party plaintiff in the complaint, or if his name did not so
appear, on the subsequent date on which his name is added as a party
plaintiff in such action.
(d) Savings provisions
In any action or proceeding commenced prior to, on, or after August
8, 1956, no employer shall be subject to any liability or punishment
under this chapter or the Portal-to-Portal Act of 1947 [29 U.S.C. 251 et
seq.] on account of his failure to comply with any provision or
provisions of this chapter or such Act (1) with respect to work
heretofore or hereafter performed in a workplace to which the exemption
in section 213(f) of this title is applicable, (2) with respect to work
performed in Guam, the Canal Zone or Wake Island before the effective
date of this amendment of subsection (d), or (3) with respect to work
performed in a possession named in section 206(a)(3) of this title at
any time prior to the establishment by the Secretary, as provided
therein, of a minimum wage rate applicable to such work.
(e) Civil penalties for child labor violations
Any person who violates the provisions of section 212 of this title
or section 213(c)(5) of this title, relating to child labor, or any
regulation issued under section 212 of this title or section 213(c)(5)
of this title, shall be subject to a civil penalty of not to exceed
$10,000 for each employee who was the subject of such a violation. Any
person who repeatedly or willfully violates section 206 or 207 of this
title shall be subject to a civil penalty of not to exceed $1,000 for
each such violation. In determining the amount of any penalty under this
subsection, the appropriateness of such penalty to the size of the
business of the person charged and the gravity of the violation shall be
considered. The amount of any penalty under this subsection, when
finally determined, may be--
(1) deducted from any sums owing by the United States to the
person charged;
(2) recovered in a civil action brought by the Secretary in any
court of competent jurisdiction, in which litigation the Secretary
shall be represented by the Solicitor of Labor; or
(3) ordered by the court, in an action brought for a violation
of section 215(a)(4) of this title or a repeated or willful
violation of section 215(a)(2) of this title, to be paid to the
Secretary.
Any administrative determination by the Secretary of the amount of any
penalty under this subsection shall be final, unless within fifteen days
after receipt of notice thereof by certified mail the person charged
with the violation takes exception to the determination that the
violations for which the penalty is imposed occurred, in which event
final determination of the penalty shall be made in an administrative
proceeding after opportunity for hearing in accordance with section 554
of title 5, and regulations to be promulgated by the Secretary. Except
for civil penalties collected for violations of section 212 of this
title, sums collected as penalties pursuant to this section shall be
applied toward reimbursement of the costs of determining the violations
and assessing and collecting such penalties, in accordance with the
provisions of section 9a of this title. Civil penalties collected for
violations of section 212 of this title shall be deposited in the
general fund of the Treasury.
(June 25, 1938, ch. 676, Sec. 16, 52 Stat. 1069; May 14, 1947, ch. 52,
Sec. 5(a), 61 Stat. 87; Oct. 26, 1949, ch. 736, Sec. 14, 63 Stat. 919;
1950 Reorg. Plan No. 6, Secs. 1, 2, 15 F.R. 3174, 64 Stat. 1263; Aug. 8,
1956, ch. 1035, Sec. 4, 70 Stat. 1118; Pub. L. 85-231, Sec. 1(2), Aug.
30, 1957, 71 Stat. 514; Pub. L. 87-30, Sec. 12(a), May 5, 1961, 75 Stat.
74; Pub. L. 89-601, title VI, Sec. 601(a), Sept. 23, 1966, 80 Stat. 844;
Pub. L. 93-259, Secs. 6(d)(1), 25(c), 26, Apr. 8, 1974, 88 Stat. 61,
72, 73; Pub. L. 95-151, Sec. 10, Nov. 1, 1977, 91 Stat. 1252; Pub. L.
101-157, Sec. 9, Nov. 17, 1989, 103 Stat. 945; Pub. L. 101-508, title
III, Sec. 3103, Nov. 5, 1990, 104 Stat. 1388-29; Pub. L. 104-174,
Sec. 2, Aug. 6, 1996, 110 Stat. 1554.)
References in Text
The Portal-to-Portal Act of 1947, referred to in subsec. (d), is act
May 14, 1947, ch. 52, 61 Stat. 84, as amended, which is classified
principally to chapter 9 (Sec. 251 et seq.) of this title. For complete
classification of this Act to the Code, see Short Title note set out
under section 251 of this title and Tables.
The effective date of this amendment of subsection (d), referred to
in subsec. (d), occurred upon the expiration of 90 days after Aug. 30,
1957. See section 2 of Pub. L. 85-231, set out as an Effective Date of
1957 Amendment note under section 213 of this title.
Amendments
1996--Subsec. (e). Pub. L. 104-174 in first sentence substituted
``of section 212 of this title or section 213(c)(5) of this title'' for
``of section 212 of this title'' and ``under section 212 of this title
or section 213(c)(5) of this title'' for ``under that section''.
1990--Subsec. (e). Pub. L. 101-508 struck out ``or any person who
repeatedly or willfully violates section 206 or 207 of this title''
after ``issued under that section,'' in first sentence, substituted
``not to exceed $10,000 for each employee who was the subject of such a
violation'' for ``not to exceed $1,000 for each such violation'' in
first sentence, inserted after first sentence ``Any person who
repeatedly or willfully violates section 206 or 207 of this title shall
be subject to a civil penalty of not to exceed $1,000 for each such
violation.'', substituted ``any penalty under this subsection'' for
``such penalty'' wherever appearing except after ``appropriateness of'',
substituted ``Except for civil penalties collected for violations of
section 212 of this title, sums'' for ``Sums'' in last sentence, and
inserted at end ``Civil penalties collected for violations of section
212 of this title shall be deposited in the general fund of the
Treasury.''
1989--Subsec. (e). Pub. L. 101-157 inserted ``or any person who
repeatedly or willfully violates section 206 or 207 of this title'' in
introductory provisions and inserted ``or a repeated or willful
violation of section 215(a)(2) of this title'' in par. (3).
1977--Subsec. (b). Pub. L. 95-151, Sec. 10(a), (b), inserted
provisions relating to violations of section 215(a)(3) of this title by
employers, ``(1)'' after ``section 217 of this title in which'', and cl.
(2), and substituted ``An action to recover the liability prescribed in
either of the preceding sentences'' for ``Action to recover such
liability''.
Subsec. (c). Pub. L. 95-151, Sec. 10(c), inserted ``to recover the
liability specified in the first sentence of such subsection'' after
``an action by or on behalf of any employee''.
1974--Subsec. (b). Pub. L. 93-259, Sec. 6(d)(1), substituted in
second sentence ``maintained against any employer (including a public
agency) in any Federal or State court'' for ``maintained in any court''.
Subsec. (c). Pub. L. 93-259, Sec. 26, in revising first three
sentences, reenacted first sentence, substituting ``Secretary'' for
``Secretary of Labor''; included in second sentence provision for an
action by the Secretary for liquidated damaged and deleted requirement
of a written request by an employee claiming unpaid minimum wages or
unpaid overtime compensation with the Secretary of Labor prior to an
action by the Secretary and proviso prohibiting any action in any case
involving an issue of law not settled finally by the courts and
depriving courts of jurisdiction of any action or proceeding involving
the issue of law not settled finally; and substituted third sentence
``The right provided by subsection (b) of this section to bring by or on
behalf of any employee and of any employees to become a party plaintiff
to any such action shall terminate upon the filing of a complaint by the
Secretary in an action under this subsection in which a recovery is
sought of unpaid minimum wages or unpaid overtime compensation under
sections 206 and 207 of this title or liquidated or other damages
provided by this subsection owing to such employee by an employer liable
under the provisions of subsection (b) of this section, unless such
action is dismissed without prejudice on motion of the Secretary.'' for
``The consent of any employee to the bringing of any such action by the
Secretary of Labor, unless such action is dismissed without prejudice on
motion of the Secretary of Labor, shall constitute a waiver by such
employee of any right of action he may have under subsection (b) of this
section for such unpaid wages or unpaid overtime compensation and an
additional equal amount as liquidated damages.''
Subsec. (e). Pub. L. 93-259, Sec. 25(c), added subsec. (e).
1966--Subsec. (c). Pub. L. 89-601 substituted ``statutes of
limitations'' for ``two-year statute of limitations''.
1961--Subsec. (b). Pub. L. 87-30 provided for termination of right
of action upon commencement of injunction proceedings by the Secretary
of Labor.
1957--Subsec. (d). Pub. L. 85-231 added cls. (1) and (2) and
designated existing provisions as cl. (3).
1956--Subsec. (d). Act Aug. 8, 1956, added subsec. (d).
1949--Subsec. (c). Act Oct. 26, 1949, added subsec. (c).
1947--Subsec. (b). Act May 14, 1947, struck out provisions relating
to the designation by employee or employees of an agent or
representative to maintain an action under this section for and on
behalf of all employees similarly situated and inserted provisions
relating to the requirement that no employee shall be a party plaintiff
unless he gives his consent in writing and such consent is filed with
the court.
Effective Date of 1977 Amendment
Amendment by Pub. L. 95-151 effective Jan. 1, 1978, see section
15(a) of Pub. L. 95-151, set out as a note under section 203 of this
title.
Effective Date of 1974 Amendment
Amendment by Pub. L. 93-259 effective May 1, 1974, see section 29(a)
of Pub. L. 93-259, set out as a note under section 202 of this title.
Effective Date of 1966 Amendment
Amendment by Pub. L. 89-601 effective Feb. 1, 1967, except as
otherwise provided, see section 602 of Pub. L. 89-601, set out as a note
under section 203 of this title.
Effective Date of 1961 Amendment
Amendment by Pub. L. 87-30 effective upon expiration of one hundred
and twenty days after May 5, 1961, except as otherwise provided, see
section 14 of Pub. L. 87-30, set out as a note under section 203 of this
title.
Effective Date of 1957 Amendment
Amendment by Pub. L. 85-231 effective upon expiration of ninety days
from Aug. 30, 1957, see section 2 of Pub. L. 85-231, set out as a note
under section 213 of this title.
Effective Date of 1949 Amendment
Amendment by act Oct. 26, 1949, effective ninety days after Oct. 26,
1949, see section 16(a) of act Oct. 26, 1949, set out as a note under
section 202 of this title.
Effective Date of 1947 Amendment
Section 5(b) of act May 14, 1947, provided that: ``The amendment
made by subsection (a) of this section [amending this section] shall be
applicable only with respect to actions commenced under the Fair Labor
Standards Act of 1938, as amended [this chapter], on or after the date
of the enactment of this Act [May 14, 1947].''
Transfer of Functions
Functions relating to enforcement and administration of equal pay
provisions vested by subsecs. (b) and (c) of this section in Secretary
of Labor transferred to Equal Employment Opportunity Commission by
Reorg. Plan No. 1 of 1978, Sec. 1, 43 F.R. 19807, 92 Stat. 3781, set out
in the Appendix to Title 5, Government Organization and Employees,
effective Jan. 1, 1979, as provided by section 1-101 of Ex. Ord. No.
12106, Dec. 28, 1978, 44 F.R. 1053.
For transfer of functions of other officers, employees, and agencies
of Department of Labor, with certain exceptions, to Secretary of Labor,
with power to delegate, see Reorg. Plan No. 6 of 1950, Secs. 1, 2, 15
F.R. 3174, 64 Stat. 1263, set out in the Appendix to Title 5.
Liability of State, Political Subdivision, or Interstate Governmental
Agency for Violations Before April 15, 1986, Respecting any Employee Not
Covered Under Special Enforcement Policy
Pub. L. 99-150, Sec. 2(c)(1), Nov. 13, 1985, 99 Stat. 788, provided
that: ``No State, political subdivision of a State, or interstate
governmental agency shall be liable under section 16 of the Fair Labor
Standards Act of 1938 [29 U.S.C. 216] for a violation of section 6 [29
U.S.C. 206] (in the case of a territory or possession of the United
States), 7 [29 U.S.C. 207], or 11(c) [29 U.S.C. 211(c)] (as it relates
to section 7) of such Act occurring before April 15, 1986, with respect
to any employee of the State, political subdivision, or agency who would
not have been covered by such Act [this chapter] under the Secretary of
Labor's special enforcement policy on January 1, 1985, and published in
sections 775.2 and 775.4 of title 29 of the Code of Federal
Regulations.''
Effect of Amendments by Public Law 99-150 on Public Agency Liability
Respecting any Employee Covered Under Special Enforcement Policy
Pub. L. 99-150, Sec. 7, Nov. 13, 1985, 99 Stat. 791, provided that:
``The amendments made by this Act [see Short Title of 1985 Amendment
note set out under section 201 of this title] shall not affect whether a
public agency which is a State, political subdivision of a State, or an
interstate governmental agency is liable under section 16 of the Fair
Labor Standards Act of 1938 [29 U.S.C. 216] for a violation of section
6, 7, or 11 of such Act [29 U.S.C. 206, 207, 211] occurring before April
15, 1986, with respect to any employee of such public agency who would
have been covered by such Act [this chapter] under the Secretary of
Labor's special enforcement policy on January 1, 1985, and published in
section 775.3 of title 29 of the Code of Federal Regulations.''
Rules, Regulations, and Orders Promulgated With Regard to 1966
Amendments
Secretary authorized to promulgate necessary rules, regulations, or
orders on and after the date of the enactment of Pub. L. 89-601, Sept.
23, 1966, with regard to the amendments made by Pub. L. 89-601, see
section 602 of Pub. L. 89-601, set out as a note under section 203 of
this title.
Construction of 1949 Amendments With Portal-to-Portal Act of 1947
Section 16(b) of act Oct. 26, 1949, provided that: ``Except as
provided in section 3(o) [section 203(o) of this title] and in the last
sentence of section 16(c) of the Fair Labor Standards Act of 1938, as
amended [section 216(e) of this title], no amendment made by this Act
[amending sections 202, 208, 211 to 217 of this title] shall be
construed as amending, modifying, or repealing any provisions of the
Portal-to-Portal Act of 1947.''
Retroactive Effect of 1949 Amendments; Limitation of Actions
Section 16(d) of act Oct. 26, 1949, provided that actions based upon
acts or omissions occurring prior to the effective date of act Oct. 26,
1949, which was to be effective ninety days after Oct. 26, 1949, were
not prevented by the amendments made to sections 202 to 208, and 211 to
217 of this title by such act, so long as such actions were instituted
within two years from such effective date.
Section Referred to in Other Sections
This section is referred to in sections 255, 260, 626 of this title;
title 2 section 1313; title 3 section 413; title 5 sections 7702, 7703.
