Is Your Employer Cheating You by Not Paying Overtime, Circumventing Minimum Wage Rules or Misclassifying Your Job?
Our FLSA Federal Labor Law Lawyers Can Help Recover Unpaid Wages & Overtime in Any State.
Am I entitled to overtime?
How do I sue my employer for unpaid overtime?
Workers are entitled to a fair day’s pay for a fair day’s work. Unfortunately, many employers try to circumvent mandatory overtime laws. For example, only a small fraction of salaried workers today receive overtime. The percentage has dropped from 62% to just 8%. Are workers putting in less hours? No! In many cases, companies are getting sophisticated any using contrived job descriptions and misclassifying workers.
Fair Labor Standards Act (“FSLA”)
Since the Great Depression, the Fair Labor Standards Act has been on the books to protect workers. The central premise of the law is to insure all workers receive a minimum wage, get “time-and-a-half” for certain jobs and protect children in the workforce. Employers that violate the FLSA are liable for damages including double back pay.
If you were subject to any any of the following Fair Labor Standards Act violations during the last 2 to 3 years, your rights may have been violated:
- Unpaid Overtime
- Unpaid Wages
- Receiving Less Than Minimum Wage
- Missed Meals and Breaks
- Misclassification (Companies avoid OT by misclassifying workers)
- Not Getting Paid for Working Through Lunch, Taking Work Home, Fielding Work Calls on Personal Time, Prep Work, Uniform Changing, etc.
- Tip Pooling or Taking Tip Monies from Workers
Federal Labor Laws, FLSA & Overtime
Fair Labor Standards Act overtime violations can be triggered when employees are misclassified as exempt (meaning exempt from overtime) and when employers fail to track hours worked “off-the-clock.”
Problems can also occur when employers fail to properly calculate overtime. Normally, shift differentials and longevity must be included in the base pay and thus are subject to being increased by time and one half. Let’s say your base pay is $10 per hour. Because you work third shift, you receive a $2.50 shift differential and an additional $1.00 per hour because you have been with the company 3 years. Your overtime rate should be $20.25 per hour, not $15.00 per hour.
For most workers, federal labor laws calculate overtime based on any hours worked in excess of 40 hours. The FLSA work period is 7 consecutive days. State laws and collective bargaining rules may give you additional benefits but for FLSA purposes, overtime is calculate on how many hours you work in a one week period.
Overtime for Meals and Breaks
If you are required to remain at your work station, are working from home or required to work through your break, that time counts towards the 40 hour overtime threshold. Like many laws, there are some exceptions. The examples on this page are illustrative. When you submit your information, we can review and determine if you may have a claim.
Calculation of Work Week for Overtime Purposes
With exception for some police and healthcare workers, the FLSA looks to a standard 7 day period in determining a work week. We have seen cases where employees will work 50 hour one week and then be given “comp time” or only work 30 hours the next. Even though the hours worked over a two week period averages out to 40 hours, the worker in this example is still entitled to 10 hours of overtime pay at time and one half.
Misclassification of Workers, Salaried Workers and Overtime
Many workers are misclassified for overtime purposes. Often this is intentional on the part of the employer. There is a common misconception that being salaried automatically means that you are not eligible for overtime. Wrong!
The FLSA does not prohibit workers from being salaried. Receiving a salary, however, is not an automatic exemption from overtime rules. (There are special rules for workers that have fluctuating hours and outside sales reps.)
With this in mind, the Fair Labor Standards Act says that workers are either exempt or nonexempt. Exempt employees have no right to overtime unless part of an employment contract or collective bargaining agreement.
For most workers, classification as exempt or nonexempt depends on three factors:
- How much they make
- How they are paid
- The type of work performed (job duties)
To be exempt, workers must earn more than $455 per week ($23,600 per year) and be salaried. The test doesn’t end there, however. To be exempt from overtime, workers must also perform professional, executive or administrative tasks. President Obama has proposed increasing the salary threshold to over $50,000. If enacted, that rule will mean millions of additional workers will be entitled to overtime.
To be considered an exempt professional, the employee must perform work that is intellectual and requires specialized education. Many companies try to misclassify bookkeepers and technicians as exempt. Those positions may require skill but usually don’t rise to the level of professional.
Typically, courts and Department of Labor find that workers have exempt executive duties if they supervise two or more people, have management as their primary function and have the ability to make hiring or firing decisions. Many employers try to treat front line supervisors as exempt by giving them fancy titles. It isn’t the title that counts, it is what the worker does.
Many battles have also been fought over the administrative exemption. The Department of Labor says this about exempt administrative job duties:
- Office or non-manual work, which is
- directly related to management or general business operations of the employer or the employer’s customers, and
- a primary component of which involves the exercise of independent judgment and discretion about
- matters of significance.
As a very general rule of thumb, if you are a line worker, your position probably isn’t exempt from overtime.
State Overtime Laws
Many states have more generous overtime and break laws. These laws sometimes calculate overtime based on how many hours are worked in a 24-hour period. They may also require so many breaks per 8 hours worked.
If you believe you are being denied pay for work you perform at home, outside the workplace or if you are being denied overtime, take a stand and act now. Wage and hour laws (State and Federal) are in place to protect you.
Class Action Waivers and Mandatory Arbitration Clauses
On May 21st, 2018, the United States Supreme Court ruled that employment agreements that force workers to waive their right to sue for employment law violations are legal. The case pitted workers, unions, trial lawyers and even the National Labor Relations Board against big business. The court ruled in a hotly contested battle for business interests. The case ended a patchwork of conflicting decisions across the country.
Joined by just three other justices, Justice Gorsuch delivered the majority opinion of the court,
“Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers?
As a matter of policy these questions are surely debatable. But as a matter of law the answer is clear. In the Federal Arbitration Act, Congress has instructed federal courts to enforce arbitration agreements according to their terms—including terms providing for individualized proceedings.”
Four other Supreme Court Justices sided with workers. Justice Ruth Bader Ginsburg said in her dissent,
“The employees in these cases complain that their employers have underpaid them in violation of the wage and hours prescriptions of the Fair Labor Standards Act of 1938 (FLSA) and analogous state laws. Individually, their claims are small, scarcely of a size warranting the expense of seeking redress alone. But by joining together with others similarly circumstanced, employees can gain effective redress for wage underpayment commonly experienced. To block such concerted action, their employers required them to sign, as a condition of employment, arbitration agreements banning collective judicial and arbitral proceedings of any kind. The question presented: Does the Federal Arbitration Act permit employers to insist that their employees, whenever seeking redress for commonly experienced wage loss, go it alone, never mind the right secured to employees by the National Labor Relations Act (NLRA) “to engage in . . . concerted activities” for their “mutual aid or protection”? §157. The answer should be a resounding “No.”
With four justices joining the majority opinion and four others siding with workers, the judges were at an impasse. Conservative Justice Clarence Thomas sided with the business community and ruled that employers could force workers to waive their rights to sue for wrongdoing.
What happens now? The Fair Labor Standards Act remains alive and well. We believe there will be a rush by unscrupulous employers to force workers to waive their rights, however. Unfortunately those waivers will now be enforceable and legal.
Call now for a no-fee consultation with an experienced MahanyLaw Fair Labor Standards Act lawyer: 202.800.9791 or Report Online. Our overtime lawyers can help you determine if you are entitled to receive additional pay, back pay and double damages. Our law practice is national.
[Page updated May 21, 2018.]