LEGAL GUIDE
Written by Avvo Staff | Nov 5, 2015

What to do if your employer isn’t following overtime laws

Depending on your job, you may be eligible to receive overtime pay. However, some employers may try to save money by illegally not paying overtime. Find out if you should be receiving overtime pay and how you can report your employer.

Who is eligible for overtime?

If you receive hourly pay, your employer must pay you extra for working overtime, as stated in the Fair Labor Standards Act (FLSA). Specifically, your employer must pay you 1.5 times your regular hourly rate when you work more than 40 hours in a 7-day workweek.

Who is not eligible for overtime?

The law does not require overtime pay for working over a certain amount of hours in a pay period or for working holidays. Although the FLSA applies to most hourly employees, the following jobs are exempt from federal overtime laws:

  • Seasonal employees
  • Agricultural workers
  • Newspaper vendors and carriers
  • Certain retail employees
  • Publicly elected or appointed officials
  • Inmates

5 ways employers try to avoid paying overtime

Because overtime costs are expensive, some employers will try to avoid paying, even though the law requires it. An employer may try to avoid overtime laws by doing the following:

  1. Classifying you as an independent contractor. Under the overtime pay laws, employers do not have to pay overtime for independent contractors who are not technically “employees.”

  2. Misclassifying your employment as “exempt” from overtime pay laws. For example, some employers may classify you as a seasonal worker even though you are a permanent employee.

  3. Asking you to perform duties while clocked out. For example, your employer may ask you to wait to clock in before performing certain job duties, such as putting on a uniform. Your employer may also ask you to clock out but stay late, work through lunch, or work from home.

  4. Asking you to be “on call.” If being on call keeps you from doing anything else but waiting for your employer to call you in, your employer may have to pay you for your time. Otherwise, on-call hours will not count toward your 7-day work week.

  5. Paying you a normal hourly rate when you have been working overtime, rather than 1.5 times the hourly rate as required by the overtime laws.

How to report your employer

If you believe that your employer is in violation of the overtime pay laws, file a complaint with the US Department of Labor (DOL) Wage-Hour Division as soon as possible. You might also contact your local Wage and Hour Division Office. Your state’s laws may have different remedies than the FLSA does for recovering unpaid wages and enforcing overtime laws.

Can I get in trouble for reporting my employer?

If you file a complaint, your employer will be notified. However, your employer may not retaliate against you for reporting an illegal overtime situation as long as your complaint is in good faith. Specifically, if you have a genuine belief that your employer is violating the law, your employer may not fire you, reduce your pay, or take any negative action against you.

What happens if my employer is found in violation of overtime laws?

If the DOL finds that your employer has violated overtime pay laws, your employer will have to compensate you for the extra hours you’ve worked. They may also have to pay fines to the DOL or other damages to you for losses that you have incurred.

If you're unsure whether or not your employer should pay overtime, talk to an employment lawyer in your state.

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