Does the FLSA apply to work performed in another country?

The FLSA states that the minimum wage, overtime, recordkeeping and child labor provisions do not apply to employees whose services during the workweek are performed in a workplace within a foreign country. Also, these provisions do not apply to territories under U.S. jurisdiction, unless they are one of the following:

• A State of the United States;

• The District of Columbia;

• Puerto Rico;

• The Virgin Islands;

• Outer Continental Shelf Lands;

• American Samoa;

• Guam;

• Wake Island;

• Kwajalein Atoll; and

• Johnston Island.

Therefore, hours that the nonexempt employees spend working in Puerto Rico and Guam would be considered compensable hours under the FLSA for purposes of determining overtime pay eligibility. However, hours worked where the entire workweek is spent working in Germany or Hong Kong would not be compensable under the FLSA.

Timing of assignment. What if the employees spend part of the workweek working in the United States and the other part working in Germany or Hong Kong? According to a wage/hour opinion letter, when part of the work performed for an employer in any workweek is covered work performed within any state (including the areas mentioned above), a nonexempt employee is entitled to FLSA benefits for the entire workweek. In this situation, nonexempt employees working part of the workweek in the United States and the other part of the workweek in Germany or Hong Kong would be eligible for overtime pay under the FLSA if hours exceed 40 for that particular week.