1. WHEN IS
OVERTIME PAY DUE?
Overtime pay of time and a half is due once an employee has worked forty
(40) hours in a workweek.
2. IS EXTRA PAY REQUIRED FOR NIGHT, WEEKEND OR HOLIDAY WORK? Extra pay for night, weekend or holiday work is not covered by Wage and Hour laws. Therefore, in order to be entitled to premium pay, a worker must work more than 40 hours in a workweek, unless an employer has agreed to pay premium pay under other conditions in addition to overtime hours.
3. WHAT IF I AM CLASSIFIED AS AN INDEPENDENT CONTRACTOR? AM I ENTITLED TO OVERTIME? True independent contractors are not entitled to overtime, because only employees are entitled to statutory overtime. However, frequently employers misclassify employees as independent contractors, either intentionally to avoid overtime payments, or accidentally. Facts often considered in determining whether someone is an employee or an independent contractor are: (1) The amount of control the employer has over you; (2) Whether there is an opportunity for profit that is not controlled by the employer; (3) Whose tools are used for the job; (4) Whether there are set hours or the employer allows you to come and go as you please; and (5) The permanency of the relationship.
4. WHAT IS THE GOVERNING LAW? The federal law governing the payment of wages is called the Fair Labor Standards Act ("FLSA"). The FLSA establishes the standards governing employees' rights to minimum wage and overtime pay. The FLSA requires the payment of time and a half wages for most employees for all hours over 40 worked in a workweek. Additionally, the FLSA requires that most employees be paid a minimum wage of at least $7.25 for all hours worked. Additionally, many States have their own State Overtime laws and laws requiring a higher minimum wage be paid.
5. IF I FILE AN FLSA LAWSUIT AND WIN, WHAT CAN I RECOVER? If an employee prevails on his/her FLSA claim, he/she will typically be entitled to recover back pay for all unpaid overtime, usually beginning two (2) years before the complaint is filed. In certain situations, the Court may allow three (3) years of recovery. Additionally, in some cases, employees are entitled to recover double the amount of unpaid wages, or "liquidated damages." Most importantly, the FLSA requires that the employer, not the employee, reimburse out-of-pocket litigation costs and pay the prevailing employees' attorneys' fees.
6. HOW DOES OVERTIME WORK? Generally, employees must be paid time and a half their regular hourly rate for any worked over forty (40) in a workweek. For example, if you make $10.00 per hour normally, then you should be paid $15.00 per hour for all hours over 40 you work in a workweek. If you are paid a salary under a method other than by the hour (i.e. day rate or piece rate), your overtime rate needs to be converted to an hourly rate using the methods established by the United States Department of Labor ("DOL"). The methods used to calculate overtime owed vary depending on the way an employee is paid for the first 40 hours of work. Contact an overtime wage and hour attorney to calculate how much you might be owed.
7. WHAT IS CONSIDERED WORK UNDER THE FLSA? Typically, work time under the FLSA all time spent in job-related activities which: (1) benefit the employer; (2) the employer "knows or has reason to believe" are being performed by the employee; (3) which the employer does not prohibit the employee from performing. This includes time spent "off-the-clock" work such as maintaining equipment before and after a work shift, staying late after work to finish up required paperwork, making job-related phone calls, emails and paperwork from home after hours, and working through designated meal periods while the employer makes automatic deductions. Additionally, time spent traveling during the work day, as well on "on call" or "waiting" time may be compensable as time worked. In many instances, even employers who pay some overtime, illegally fail to employees for ALL hours worked. Therefore, even employees who have received some overtime pay may be entitled to recover additional overtime pay.
8. HOW IS A WORKWEEK DEFINED UNDER THE FLSA? Under the FLSA, a workweek is defined as any seven (7) day consecutive period. The starting and ending point for the workweek is defined by the employer. Overtime must be computed on a week-by-week basis.
9. CAN MY EMPLOYER AVERAGE TWO (2) WORKWEEKS TO DETERMINE MY ENTITLEMENT TO OVERTIME PAY? No. Since overtime is calculated on a week-to-week basis, as stated above, an employer may not average two (2) weeks, even if it represents one pay period. For example, if an employee works 50 hours one week and 30 hours the next, the employer must pay ten (10) hours of overtime for the first week and may not simply pay 80 hours at "straight time" for the pay period.
10. CAN MY EMPLOYER PREVENT ME FROM WORKING OVERTIME IF I WANT TO? Yes. An employer may schedule employees in such a way to keep them from working more than 40 hours in a workweek.
11. MUST OVERTIME BE APPROVED BY AN EMPLOYER TO BE COMPENSABLE? Typically not. The law states that if the employer knew or had reason to know that overtime was/is being worked, the time is compensable. Therefore, lack of authorization from the employer for overtime work will typically not prevent an employee from entitlement to overtime pay for time worked.
12. WHAT IF I DO NOT HAVE RECORDS OF MY OVERTIME WORKED? The burden is typically on the employer to keep accurate records of time worked by its employees. Where an employer fails to keep accurate time records, Courts typically allow an employee to recover unpaid wages based on a reasonable and realistic estimation of hours worked. Obviously, such an estimation varies from case to case.
13. INSTEAD OF PAYING ME OVERTIME, MY EMPLOYER GIVES ME "BANKED TIME" OR "COMP TIME" TO USE IN OTHER WORKWEEKS. IS THIS LEGAL? Not unless you work for the government or a municipal employer. The FLSA requires that private employers pay employee cash (or its equivalent) when employees work more than 40 hours in a workweek. Therefore, typically, if an private employer is giving employees "banked time" or "comp time" rather than time and a half pay for overtime hours, they are in violation of the FLSA.
14. I AM NOT A LEGAL CITIZEN OF THE UNITED STATES. AM I STILL TO RECOVER UNPAID OVERTIME WAGES? Yes. The FLSA provides for payment of anyone who has worked overtime hours, but who has not received appropriate overtime pay, regardless of their citizenship status or lack thereof.
15. MY EMPLOYER PAYS ME IN CASH. AM I PREVENTED FROM PURSUING A CLAIM FOR OVERTIME OR MINIMUM WAGE COMPENSATION? No. Employees paid in cash have the same rights to be paid overtime for hours over 40 in a workweek, and to be paid the legal minimum wage in the State where they are working regardless of how the employer pays.
16. I QUIT/GOT FIRED AND DID NOT RECEIVE MY FINAL PAYCHECK. CAN I RECOVER THIS UNPAID COMPENSATION? Yes. This is a very common violation of minimum wage law. If you have worked, but have not been paid for your work, your former employer has failed to pay you at least minimum wage, as required by law.
17. I SIGNED A WAIVER, STATING THAT I WOULD NOT PURSUE OVERTIME. CAN I STILL PURSUE A CLAIM? Yes. Employers generally cannot ask an employee to waive his or her entitlement to be paid minimum or overtime wages. Only waivers supervised by the Department of Labor (DOL) or obtained with Court supervision, as the result of a private lawsuit, can extinguish your rights to be paid minimum or overtime wages.
18. CAN AN EMPLOYER FIRE AN EMPLOYEE IF HE OR SHE SUES FOR UNPAID WAGES? No. An employer cannot legally fire an employee or retaliate against an employee if the employee sues for unpaid wages. Common examples of illegal retaliation are "blackballing" an employee, demoting an employee, reducing an employees hours, giving an employee worse shifts, reducing job duties and giving false poor performance reports. Any such negative job action in retaliation for an employee bringing a lawsuit to recover unpaid wages is specifically prohibited by Federal law.
19. HOW FAR BACK CAN I GO TO RECOVERY UNPAID OVERTIME WAGES? The FLSA normally permits an employee to go back two (2) years from the date their complaint is filed in Court. In certain instances, where the Court determines that the employer "knew" it was violating the FLSA or "willfully disregarded" its obligations under the FLSA, the Court may extend the period to three (3) years from the date the complaint is filed in Court. Typically, the only way to stop losing entitlement to recover wages, based on the passage of time, is to file a legal complaint in Court. Under most circumstances, simply complaining to the employer or calling the Department of Labor, will not prevent you from losing entitlement to recover for work performed in the past.
20. IF I BELIEVE AN EMPLOYER OR PAST EMPLOYER OWES ME OVERTIME OR MINIMUM WAGES, WHAT CAN I DO? Contact the Frisch Law Firm at (888)OVERTIME [888-683-7846] or http://www.overtimeadvocate.com/2.html for a free consultation.