- Have you been forced to work through meal or rest breaks?
- Have you been forced to work before clocking in at the beginning of your shift?
- Are you required to work after clocking out at the end of your shift?
- Does your employer use an inaccurate payroll overtime reporting system?
- Are you ineligible for overtime wages because your employer inaccurately designated you as a salary-based pay employee?
Our law firm protects the interests of employees in wage, hour and salary disputes such as these. Please review the following information to gain a better idea of your rights as an employee.
Unpaid Overtime: What are my Rights?
When Employees Are Not Paid for Their Work Overtime ...
Unpaid overtime and unpaid break time are illegal workplace tactics employers may use to save money in respect to compensating their employees. It is illegal for employers to not compensate their employees for that extra hour of work, or not allow employees to take breaks mandated by law. Know your rights as an employee. Contact the attorneys at Mathew & George if you have been a victim of unpaid overtime.
Overtime: What is the Law?
Federal law mandates that employees/workers who are not "exempt" receive overtime pay for any time worked over forty hours in one workweek. A "workweek" is defined as one period of 168 hours, or seven consecutive twenty-four hour periods. The workweek may start at any time, or on any day, as long as the starting day and time are applied consistently. The pay rate of overtime, which varies state to state, is one and one-half times the employee's regular rate of pay, and must be paid in wages, not in goods or time off. Employees who are qualified for overtime pay cannot waive their right to collect overtime.
Should I get paid overtime wages?
There are two sets of laws that may apply. First and foremost, you need to know whether your employer falls under the Fair Labor Standards Act (FLSA). The FLSA is federal law that enforces the right to overtime wages and typically promises one and a half times the regular wage for overtime pay. This means your employer must pay 1.5 times your normal hourly rate for hours over 40. Second, most states have specific laws regarding wages and overtime, so be sure to investigate your state's laws as well. Both the FLSA and state laws cover a wide array of conditions, so it's likely that your employer must comply with at least one of them.
If you would like to know if you are covered by the Fair Labor Standards Act, you must qualify as a "nonexempt" employee. Nonexempt employees fall under the FLSA's protection, and are generally entitled to overtime pay. Most non-exempt employees receive hourly wages and are subject to wage and hour laws. This usually applies to non-professional employees. You must satisfy this 3-part test to be considered a "nonexempt" employee:
- Duties Test: the FLSA excludes "management" roles and the pertinent question is what activities you are performing. A good way to think of it is deciding who is "in charge". If you are "in charge" during a given shift, then the FLSA likely doesn't apply. Also, if you have genuine input into the job status of other employees, such as hiring, firing, promotions, or assignments, then you are exempt.
- Salary Basis Test: the FLSA usually covers non-salaried employees, and it is important to determine whether you are a salaried employee or not. An employee who is paid on a salary basis is not affected by how the employer classifies their compensation. It is dependent on whether the employee has a "guaranteed minimum" dollar amount that they can depend on. If you have a guaranteed minimum, you would most likely be considered a salaried employee.
- Salary Level Test: Employees who are paid less than $23,600 per year ($455 per week) are nonexempt. (Employees who earn more than $100,000 per year are also exempt.)
Exemptions from Overtime Requirements
Many questions about overtime relate to which employees are exempt from the overtime requirements. The U.S. Department of Labor regulation states that all employees who earn less than $455 per week, or $23,660 per year, are automatically entitled to receive overtime pay. Employees who earn more than that amount are exempt from overtime requirements if they are compensated with a salary, and not on an hourly basis. If their job fits into one of the following categories, then they are also exempt:
- Learned professional, where an employee's work requires advanced knowledge in a field of science or learning. Advanced knowledge is usually acquired by a prolonged course of specialized instruction, and is not acquired on the job itself. This category can include lawyers, doctors, dentists, teachers, architects, clergy, registered nurses (but not LPNs), accountants (but not bookkeepers), engineers, and pharmacists.
- Creative professional, where an employee's primary duties involve imagination, invention, originality, or talent in the field of creative arts. This can include actors, musicians, composers, writers, cartoonists, and some journalists.
- Executive, in which an employee's role involves office or non-manual work related to the management of the employer's day to day operations. This involves requiring the employee to exercise independent judgment and discretion.
Not sure if you qualify as an Executive? Questions to ask might include whether the employee has the authority to create or interpret company policies, how significant the employee's assignments are in relation to the overall business operations of the enterprise, (for example, buying paper clips vs. ordering a fleet of delivery vehicles), and whether the employee has the right to deviate from company policy without prior approval. If your role includes one of these responsibilities, then you are exempt.
Some jobs are classified as exempt by definition. In addition to the exemptions noted above, computer repair employees and outside sales employees are also exempt from overtime payment. An outside sales employee/sales agent is one whose primary role is generating sales for the company, and who usually works a portion of their days away from the employer's site. A computer employee is one who is employed with a salary or fee basis at no less than $455 per week, or who is paid an hourly wage of no less than $27.63 per hour. A computer employee has primary duties that involve the application (including consulting), creation, development, or modification of computer systems or programs, or machine operating systems.
For more information on the Fair Labor Standards Act, please visit http://www.flsa.com/coverage.html
You can enforce your FLSA rights by bringing forth a private lawsuit. Please contact Mathew & George today for a FREE consultation.
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