Are You Entitled to Overtime Pay?
Whether you are entitled to overtime pay depends on several factors. A qualified Labor and Employment Law Attorney can advise you on whether you are entitled to overtime pay and, if so, how to collect those unpaid wages. This guide will answer your basic questions on this issue.
Generally all Employees are Entitled to Overtime PayThe Fair Labor Standards Act (FLSA) is a federal law that requires employers to pay at least minimum wage--currently $7.25 per hour--for hours worked and overtime pay at one and one-half times an employee's regular hourly rate for all hours over forty worked in a workweek. Overtime is calculated on a weekly basis. An employer is required to keep records of an employee's time and amounts paid and to pay that employee according to federal law. An employer cannot decide as a matter of company policy that it does not pay overtime and an employer cannot require an employee to agree not to be paid overtime.
As with most laws, there are exceptions to the overtime provisions of the FLSA. For example, minimum wage for tipped employees such as waitresses and bartenders is $2.13 so long as tips raise that wage to $7.25 per hour. However, these employees are still entitled to overtime pay. Still, while there are exceptions to this law, most employees are entitled to overtime pay.
Overtime violations are widespread and victimize workers in many different industries. Statistics show that the most common violations occur with regard to workers in these jobs: Nurses, Retail, Telecommunications/Utilities, Financial Services including Insurance, Food Services, Janitorial, Construction, Security, Hotel Workers, Landscaping, Technology, and Internet and Cable T.V. Installers.
Salaried EmployeesMany employers believe that if they pay an employee a salary they do not have to pay overtime. Many workers believe this as well. This is simply not the law. Just because an employee receives a salary does not mean that worker is not entitled to overtime pay. Whether an employee is exempt--and therefore not entitled to overtime pay--depends on two factors: 1). does that employee receive a salary of at least $455 per week?; and 2). does that employee perform exempt job duties? In other words, an employee who receives a salary is still entitled to overtime pay if that employee does not perform certain jobs.
The most common categories of exempt job duties are those of Administrative Employees, Executive Employees, and Professional Employees. These are commonly known as the "White Collar Exemptions." However, the job title is not controlling. Therefore, just because an employee is called an Administrative Assistant, Office Manager, Shift Leader, or any other label indicating exempt status does not mean that employee is not entitled to overtime pay. A qualified Labor and Employment Law Attorney will be able to tell you whether you are entitled to overtime pay-even if you receive a salary.
Independent Contractors and 1099 EmployeesEmployers often try to save money by classifying workers as "Independent Contractors" or "1099 Employees." When employers improperly classify employees as independent contractors, the employees may not receive important workplace protections such as the minimum wage, overtime compensation, unemployment insurance, and workers' compensation. It does not matter what the worker is called. What is important is whether, as a matter of economic reality, the worker is economically dependent of the employer or whether he is truly in business for himself. Even if the worker has agreed to be a contract worker, that person is very likely an employee entitled to receive overtime pay.
In determining whether a worker is truly an independent contractor or is in fact an employee entitled to overtime pay, several factors are considered: 1). the degree of control exercised by the alleged employer; 2). the extent of the relative investments of the worker and the alleged employer; 3). the degree to which the worker's opportunity for profit or loss is determined by the alleged employer; 4). the skill and initiative required in performing the job; and 5). the permanency of the relationship. No single factor determinative. It has been my experience that, in most instances, these factors tend to demonstrate that the worker is an employee entitled to overtime pay, not an independent contractor.
Off the Clock WorkIf an employer requires an hourly employee to work "off-the-clock," such as pre-shift work preparing for the workday (e.g. starting the computer, reading e-mails, preparing tools or equipment), work during an unpaid lunch period, post-shift work closing out the workday (e.g. finalizing paperwork, sending reports), or work from home, then the employee may be entitled to overtime pay for that time worked.
Sometimes employers tell employees that they must be ready to begin work immediately at the start of their shift or that their work must be completed before they leave to go home. However, they also tell them that they cannot clock in early or clock out late. This caused employees to have to begin preparatory work off-the-clock before their shift or to complete their work off-the-clock after their shift ends. If the employer is aware that this is happening and allows--or requires--it to happen, the employee is entitled to minimum wage and overtime compensation for those off-the-clock hours
How to Make an Overtime ClaimSometimes the United States Department of Labor seeks the recovery of unpaid overtime wages for workers. However, the Fair Labor Standards Act gives individual employees a private right to pursue their claims with their own lawyer. Additionally, the FLSA requires that the employer pay attorney's fees to a prevailing employee in these cases.
You can be compensated for your unpaid wages going back at least two, and sometimes three years. In fact, you may be entitled to recover twice the amount of your unpaid overtime even if you did not keep track of your hours. For more information on whether you have a case for unpaid overtime compensation and, if so, for how much money, you should contact a qualified Labor and Employment Law Attorney.