Written by attorney Joseph Maus

Tricks That South Florida Employers May Use To Get Out Of Paying Overtime Wages

Everyone is trying to stretch their money during these uncertain economic times, including employers. In fact, some employers will go out of their way to try to get around the overtime wage laws so they can avoid having to spend more money on worker salaries. You may have been wrongly denied overtime and might not even be aware of it. Here are a few tricks that employers may try to use to get around paying South Florida overtime wages:

  • Even if they don't know the details, every employer has a general idea of state and federal labor laws and they are aware that employees are entitled to overtime. In order to avoid paying overtime, they may not give the worker "employee" status and may instead call workers "independent contractors". Anyone can be called an independent contractor but there is a legal standard that designates an employee from an independent contractor. If the employer controls the time and manner of how your work is performed, supplies you with all the materials needed to do your job, and pays you on an hourly or salary basis, you are most likely an employee, not an independent contractor.

  • Another way to get around the labor law is to call the employee a manager, which means they are exempt from overtime wages. If you have the power to hire and fire workers and more than 50 percent of your work time is devoted to management duties, you may be exempt from receiving overtime wages. However, if your management responsibilities mean you spend a high percentage of your workday engaged in non-management tasks, such as answering phones and filing, and you only are responsible for duties such as cashing out a register at the end of a shift or carrying an over-ride key, you may not actually be a manager and may not be exempt from overtime pay in South Florida.

  • Employees under H-1B status: H-1B is a nonimmigrant classification used by foreign workers who will be employed temporarily in a specialty occupation and it requires a sponsoring U.S. employer. Many companies are increasingly hiring workers from overseas, particularly for the IT field, because the workers will settle for lesser wages. Oftentimes, the foreign worker is either unaware of or afraid to assert their rights, which allows an employer to get around the overtime wage laws.

  • If you must take unpaid breaks or if you find yourself being required to work through lunch, you may be owed overtime. An employer must pay you for breaks of more than 5 minutes and less than 20 minutes or if you are required to complete work-related duties during your lunch break, but must clock out for that lunch break..

  • With all the new communication technology out there, you may be required to check your company Blackberry or PDA, or answer emails or texts after work hours, which may entitle you to overtime pay.

  • If you are required to be 'on call' and must report to work on short notice, you may be entitled to overtime pay.

For many South Florida employees, the threat of losing their job is enough to make them overlook the overtime wages they should be getting but aren't. However, you should be aware that the Fair Labor Standards Act (FLSA) prohibits an employer from punishing or firing an employee who has asserted his or her rights to overtime wages.

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