Exempt or Non-Exempt
Generally all employees are non-exempt and due overtime wages unless the employer can prove that the employee's duties meet narrow exemptions. These exemptions are very specific and detailed. By way of example, employers regularly rely upon the executive or administrative exemptions to hold that shift managers or assistant managers are exempt from overtime. However, whether the employee is exempt from overtime will depend upon the specific duties performed by the employee. A common error causing employers wrongfully determine an employee is exempt from overtime is where the employer fails to consider the discretion or decision making power the employee is authorized to use. If the shift manager simply follows specific rules set out by the employer and cannot actually set policy themselves, then the employee may be non-exempt and due overtime wages. Because determining whether an exemption applies is complex, employees should consider contacting legal counsel for assistance.
Oregon Civil Penalty and FLSA Liquidated Damages for Failure to Pay Overtime Wages
In addition to the unpaid overtime wages, both Oregon law and the FLSA potentially allow the employee to recover greater than the amount of unpaid overtime wages. Under Oregon overtime laws, the employee is entitled to the unpaid wages, plus a civil penalty. The overtime civil penalty is calculated by multiplying the average hourly rate of the employee by 8 hours per day until the wages are paid, or 30 days maximum. Where the employee is paid a salary, the salary will be broken down into an hourly rate for purposes of calculating the wages due and the overtime civil penalty. The FLSA operates differently. Where the employer is found to have willfully failed to pay the overtime wages, the employee may recover liquidated damages equal to the amount of unpaid overtime wages.
Attorneys Fees and Costs in Overtime Lawsuits
Under the FLSA, the employee can recover costs and attorney fees for winning their case and collecting overtime wages. Similarly, Oregon law has several statutes that may allow the employee to recover costs and attorney fees if the employee prevails in proving that overtime wages, or any other wages were not paid.