Definition of willful under FLSA:
"a willful FSLA violation occurs when "the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute."
However, when an employer engages in a "willful violation" of the FLSA, the statute of limitations is three years. Not only is the statute of limitations extended, but a finding of a willful violation also allows the plaintiff to collect liquidated damages
A 2-year statute of limitations applies to the recovery of back pay, except in the case of willful violation, in which case a 3-year statute applies.
§ 578.3 What types of violations may result in a penalty being assessed?
(a) A penalty of up to $1,000 per violation may be assessed against any per-son who repeatedly or willfully violates section 6 (minimum wage) or section 7 (overtime) of the Act; Provided, how-ever, that for any violation occurring on or after January 7, 2002 the civil money penalty amount will increase to up to $1,100. The amount of the penalty will be determined by applying the criteria in § 578.4.
(b) Repeated violations. An employer’s violation of section 6 or section 7 of the Act shall be deemed to be ‘‘repeated’’ for purposes of this section:
(1) Where the employer has previously violated section 6 or 7 of the Act, provided the employer has previously received notice, through a responsible official of the Wage and Hour Division or otherwise authoritatively, that the employer allegedly was in violation of the provisions of the Act; or
(2) Where a court or other tribunal has made a finding that an employer has previously violated section 6 or 7 of the Act, unless an appeal therefrom which has been timely filed is pending before a court or other tribunal with Wage and Hour Division, Labor jurisdiction to hear the appeal, or unless the finding has been set aside or reversed by such appellate tribunal.
(c) Willful violations.
(1) An employer’s violation of section 6 or section 7 of the Act shall be deemed to be ‘‘willful’’ for purposes of this section where the employer knew that its conduct was prohibited by the Act or showed reckless disregard for the requirements of the Act. All of the facts and circumstances surrounding the violation shall be taken into account in deter-mining whether a violation was willful.
(2) For purposes of this section, an employer’s conduct shall be deemed knowing, among other situations, if the employer received advice from a responsible
official of the Wage and Hour Division to the effect that the conduct in question is not lawful.
(3) For purposes of this section, an employer’s conduct shall be deemed to be in reckless disregard of the requirements of the Act, among other situations, if the employer should have inquired further into whether its conduct was in compliance with the Act, and failed to make adequate further inquiry.