Below you will find several Frequently Asked Questions
about concerns related to Unpaid Overtime.
Am I owed unpaid overtime?
When am I supposed to
receive overtime pay?
How can I get the overtime
pay I am owed?
What are liquidated damages?
Is my job in danger if
I file an overtime complaint?
If I have an FLSA claim,
when do I need to start the lawsuit?
If I didn't seek approval
for overtime, am I entitled to get paid?
What if my employer didn’t
know I was working off the clock?
What if I can’t
afford to pay a lawyer?
I have a severance agreement
and/or signed a waiver saying I would not sue the company.
What rights do I have?
How do I know if I am
owed severance pay?
If I work 50 hours one
week and then 30 hours the next week can my employer avoid
paying me overtime for the first week?
Can my employer give
me
“flex time” or “comp time” instead
of paying me overtime?
I am paid “half-time”
or “Chinese over-time,” is this legal?
How can I enforce my
rights under the FLSA?
I'm an independent contractor,
should I be getting overtime pay?
Should my employer factor
in my bonuses, commission, and/or other incentives to determine
my rate of pay?
Do I get extra pay when
required to work nights or weekends?
When are pay raises required?
Can I be required to do work that is outside
my job description?
Is there a federal law
that requires my employer to give me a certain amount of
sick pay, holiday pay or vacation pay?
When am I owed “double
time” pay from my employer?
Am I guaranteed any particular
amount of work every week?
Does a FLSA suit have
to be a class action suit?
Is money recovered in
an FLSA case taxable?
If I bring a FLSA case
how long will it take?
Should I be getting minimum
wage?
Am I owed unpaid overtime?
The Fair
Labor Standards Act (FLSA) requires that most employers
pay their employees time and one-half for time worked over forty hours in one
week. BUT there are some complicated exceptions, called exemptions that affect
job duties, occupations, and industries. For instance, the FLSA exempts people
who are employed in a “bona fide executive, administrative, or professional
capacity.” If an exemption applies your employer may be exempt from having
to pay either minimum wage, overtime, or both. Exemptions to the FLSA can be
specific, detailed, and complicated so all the exemptions are not listed. Some
employers abuse the exemptions by claiming that a particular exemption applies
when it does not, an example of this is employee
misclassification. Visit our employee
Qualifications section to read more information on unpaid
overtime as it related to your profession. If you do not see your profession
listed, please contact us immediately via our toll free number or online contact
form.
When am I supposed to receive overtime pay?
Anytime you work more than 40 hours in a workweek you are to receive
overtime pay. Overtime pay is one and one-half times your regular hourly
rate of pay, although special exceptions apply with respect to certain
professions and positions, such as police
officers, managers, and hospital
/ nursing home employees.
An employer can be subject to both federal and state overtime
laws because some states have passed overtime
laws in addition to federal law. Employers in those states must follow
whichever law is more favorable to the employee.
How can I get the overtime pay I am owed?
There are a couple of ways that you as an employee can recover unpaid
overtime or unpaid minimum wages.
First, you can file a lawsuit for back pay. If you can
prove you were not paid overtime owed to you by your employer you can recover
back pay. That total amount of back pay owed to you may then be doubled
by the Court (this additional amount is referred to as liquidated damages).
In addition, your attorney's fees and court costs may be paid for by the
defendant.
Second, you can proceed through the supervision of government
agencies, such as the Department of Labor. However, as with many governmental
agencies, this process can be inefficient and the government may have tens
of thousands of claims it handles at a given time.
What are liquidated damages?
Liquidated damages are up to double the amount you are owned in back
wages. For example, if you are owed $1000 you would get $2000. The extra
$1000 is liquidated damages. Employees are generally entitled to liquidated
damages and can receive them through a lawsuit against the employer.
Is my job in danger if I file an overtime complaint?
It is against the law to retaliate against an employee for filing a complaint
or for participating in a legal proceeding for violation of overtime pay
or wage-and-hour requirements. If your employer has done this, they can
be held responsible.
Common examples of retaliation include:
Firing the employee for no reason or a made-up reason
Reducing job duties
Refusing a raise regularly given
Lowering performance reviews
Assigning an employee to less desired job duties or shifts
Blacklisting an employee
Not hiring an applicant who made an FLSA claim against another company
Firing a relative of the employee
Disciplining an employee out of proportion to other prior disciplinary
practices
Most companies do not want to face a retaliation lawsuit.
If I have an FLSA claim,
when do I need to start the lawsuit?
Timing is important; the FLSA will allow you to get the money you are
owed 2 years before you file the complaint in court. If the employer knowingly
disregarded federal regulations, the FLSA will entitle you to money you
are owed for the 3 years before you file the complaint in court. If you
are owed money outside those time limits you won’t be able to get
the money; time will have run out.
Making a complaint to an employer, or the Department of
Labor, is not the equivalent of filing a complaint in court and only filing
a compliant in a Court will stop the running of the limitation period. So
you must act quickly.
If I didn't seek approval
for overtime, am I still entitled to get paid?
Yes, if your employer knows or has reason to know you are working more
than 40 hours in a workweek then your employer must pay you overtime, even
if you didn’t seek approval.
What if my employer didn’t
know I was working off the clock?
Your employer is held responsible for your actions, regardless of whether
or not the employer knew what you were doing i.e working
off the clock. Employers must keep detailed time records.
An employer can be liable even without actual knowledge of the work being
performed because employers have a reasonable opportunity and duty to inquire
as to what the employee is doing after hours at work. But if an employee
hides his or her actions from the employer, the employer may not have to
pay overtime.
What if I can’t afford to pay a lawyer?
Some lawyers work on a “contingency fee” basis where they collect
payment after judgment in the case. Usually, a
“contingency fee” is a percentage of the awarded judgment. Suit
expenses will either be paid by the client or advanced by the lawyer, depending
on the arrangement. Before hiring an attorney, make sure you understand
the financial arrangement completely, and obtain the attorney’s fee
agreement in writing.
I have a severance agreement
and/or signed a waiver saying I would not sue the company. What rights
do I have?
You have a right to overtime wages and minimum wages even if you signed
a waiver and/or said you would not sue in a severance agreement. Therefore,
for overtime purposes, you have the same rights as if you had not signed
the severance agreement or wavier. However, other rights can be waived so
you may want to consult with an attorney before signing any document that
waives your rights.
How do I know if I am owed severance pay?
Unlike overtime pay, severance pay is not regulated, so it is not automatically
owed to you. You may be owed severance pay if you and your employer agreed
on severance pay before you began your job. Otherwise, a fired employee
is not owed severance pay.
If I work 50 hours one
week and then 30 hours the next week can my employer avoid paying me overtime
for the first week?
No. If you work more than 40 hours in a “workweek”
you must be paid overtime for any hours worked over those 40 hours. A “workweek” is
considered 7 days of work in a row and is the basis for calculating overtime
pay. Your employer can not average two weeks to avoid paying overtime. Each
workweek stands alone.
However, specially listed professions, such as medical-care
employees, police officers, and fire fighters, are permitted to be paid
on special “alternative work periods.”
Can my employer give me “flex
time” or “comp time” instead of paying me overtime?
Probably not, compensatory time or “comp
time” or “flex time” applies to government
employees. Generally, for everyone else, “comp time” cannot
be substituted for overtime pay.
For government employees comp time may be substituted for
the overtime pay if the employee agrees. Comp time is limited to 480 hours
per year for police, fire fighters, EMS and seasonal workers; all other
workers up to 240 hours per year.
I am paid “half-time”
or “Chinese over-time,” is this legal?
It can be; under the FLSA employers can pay according to a fluctuating
work week method in limited circumstances. This method is often referred
to as the “half time” or “Chinese over-time” method.
However, employers often do not follow all of the requirements of this method
and their employees are still owed time and one-half for all hours worked
over 40 hours.
An employer must meet the following requirements before
it can pay an employee pursuant to the fluctuating workweek method:
1. the employee's hours must fluctuate from week to week;
2. the employee must receive a fixed weekly salary that remains the same
regardless of the number of hours that the employee works during the week;
3. the fixed amount must be sufficient to provide compensation at a regular
rate not less than the legal minimum wage.
4. the employer and the employee must have a clear, mutual understanding
that the employer will pay the employee the fixed weekly salary regardless
of the hours worked; and
5. the employee must receive a fifty percent overtime premium in addition
to the fixed weekly salary for all hours that the employee works in excess
of forty during that week.
How can I enforce my rights under the FLSA?
If you want to sue, it is best to hire an attorney with knowledge and
experience in employment law. You may also contact the U.S. Department
of Labor (DOL) and discuss your employer’s actions. The DOL does
not always prosecute a case, even though it may have investigated a claim.
I am an independent contractor,
should I be getting overtime pay?
It depends; generally, independent contractors are not employees of any
one company and are not entitled to overtime pay but there are exceptions
so that independent contractors are entitled to overtime pay. Also, your
employer may be calling you an independent contractor when you are not.
Should my employer factor
in my bonuses, commission, and/or other incentives to determine my rate
of pay for overtime?
Yes. If you receive bonuses,
commission or incentive pay your employer needs to include them in the amount
you are paid to calculate how much you are owed in overtime pay. For instance,
for every hour you work overtime you are to get time and one-half for that
time. Regardless of how you are paid, salaried or hourly, your employer
should include your bonuses, commission and/or incentives to determine what
your rate of pay is for overtime. If your employer is not doing this you
are not being paid enough in overtime.
Do I get extra pay when
I am required to work nights or weekends?
There is no federal regulation about working nights or weekends that
requires your employer to pay extra money because you are working nights
or on the weekend. However, if working nights and/or weekends means that
you worked more than 40 hours within the workweek, then your employer must
follow overtime regulations.
When are pay raises required?
Usually pay raises are not required by law. Pay raises are determined
by employers and are not required by law unless the minimum wage for the
U.S. or a state is increased. Pay raises may also be agreed upon by employer
and employee.
Can I be required to do
work that is outside my job description?
Yes, an employer may require employees to perform duties outside their
job description unless they are under the age of 18. In general, there are
no federal restrictions on the types of work employees can do when they
are over the age of 18.
Is there a federal law
that requires my employer to give me a certain amount of sick pay, holiday
pay or vacation pay?
No. Sick pay, holiday pay and vacation pay are not federally regulated.
If you want to be paid for that time, you and your employer would have to
agree to payment.
When am I owed “double
time” pay from my employer?
Double time is not federally required. An agreement between employee
and employer must include a provision for “double time” in order
for the employee to receive it.
Am I guaranteed any particular
amount of work every week?
No, not under the FLSA, federal law does not set a particular schedule
of work. An employer can lawfully “adjust schedules”
within a workweek to avoid paying overtime to employees.
Does a FLSA suit have to be a class action suit?
No. But it can be. Employees that are “similarly situated”
may file an FLSA suit together as a class action. If you don’t want
to be part of a class action you do not have to be. However, if the employees
in a class action win the suit, those employees who did not join in the
suit would not be entitled to the benefits of the judgment.
“Similarly situated” is a legal standard.
Is money recovered in an FLSA case taxable?
Yes, if you get money owed to you in a FLSA case you are taxed in the
same way as if you had actually received the pay during employment.
If I bring a FLSA case how long will it take?
It depends; some cases can be settled out of court quickly while other
cases can take a long time to be brought to trial. Every case is different.
Should I be getting minimum wage?
Probably; all covered, nonexempt employees are eligible for the federal minimum
wage. Employees of federal, state or local government
agencies, hospital employees, domestic workers and school employees are
also entitled to the minimum wage. There are, however, exceptions to the
minimum wage requirement that apply to some workers.
