QUICK ANSWERS TO OVERTIME AND UNPAID WAGE QUESTIONS
Q: What do the terms overtime hours and overtime pay mean?
A: Overtime hours means the time an employee works over 40 hours per work week. Overtime pay is the special premium rate of compensation that employers must pay their employees for working overtime hours. Under federal law, overtime pay must equal at least one and one half times an employee’s regular rate of pay. So, if an employee regularly makes $8/hr, that employee is entitled to make $12/hr for all the overtime hours he or she works.
Q: What are unpaid wages?
A: Unpaid wages can mean (1) a portion of your pay that has been wrongly withheld, (2) pay or wages (including commissions, bonus and vacation pay) that are owed to you, or (2) a paycheck that your employer never paid you.
Q: Who must be paid overtime pay?
A: All employees are entitled to overtime pay unless they fall into a specific exemption that excludes them from receiving overtime pay. The three largest exemptions include employees in “executive,” “administrative,” and “professional” job positions. Whether you are an exempt employee depends on your specific job duties and responsibilities. If you have questions about your exempt status, you should talk to a lawyer.
Q: What if I agreed to work overtime but not be paid for it?
A: You are still entitled to be paid an overtime wage rate for all the overtime hours you work. Agreements that limit your right to overtime pay are unenforceable.
Q: What if I have no written records or proof of the hours I worked?
A: You do not need written records or proof of the number of hours you worked. It is the employer’s duty to maintain certain records regarding your work hours and pay. If your employer does not have those records, your testimony under oath will be sufficient to prove your claim.
Q: Do I have to be paid overtime pay for working more than eight hours in one day?
A: No. overtime pay must only be paid when you work over 40 hours in week, and not more than 8 hours in any one day.
Q: What am I entitled to receive if I file an overtime lawsuit and win?
A: You are potentially entitled to the overtime wages your employer should have paid you, interest, and attorney’s fee. You are also potentially entitled to an additional amount of “liquidated damages.” Liquidated damages allow you to double the amount of unpaid overtime wages your employer owes you. For example, let’s say your unpaid overtime wages equal $15,000. If you get liquidated damages, you are entitled to $30,000 ($15,000 x 2).
Q: When am I entitled to receive liquidated damages?
A: You are entitled to receive liquidated damages in most instances. You will not be entitled to receive liquidated damages if your employer can prove that it acted in good faith.
Q: How many years can I go back to recover my owed overtime wages?
A: The FLSA contains a two year limitations period. That means you can recover overtime for the two (2) year prior to the date you file your lawsuit. This limitations period can be extended to three (3) years if your employer’s action of not paying you overtime was “willful.”
Q: If I file an overtime lawsuit, how long will my case take?
A: It depends. Every case is different, however, most lawsuits seeking overtime are settled quickly. That means it can take as little as a few months. However, if the employer vigorously defends the lawsuit, it could take between a few months to a year.
Q: Can you help me figure out how much overtime I am owed?
A: Yes. If you provide us with all the pertinent information, we can quickly calculate the potential damages that you are owed.
Q: What if my employer tells me that I am independent contractor?
A: You may still be entitled to overtime pay because your employer may be wrongly telling you that you are an independent contractor. Whether or not you are an independent contractor depends on a variety of factors that we will need to discuss with you before we can give you an answer.
Q: Am I entitled to overtime if I am a government employee?
A: Yes. The FLSA applies to federal and state government employees.
Q: What if I work 30 hours in one week and 50 hours in the next week, can my employer average the two weeks to avoid paying me overtime?
A: No. This is a common method employers use to avoid paying overtime. The averaging of workweeks is expressly prohibited by law. You are entitled to receive overtime pay for each individual week you work more than forty (40) hours. In the above example, you are entitled to receive overtime pay for the ten (10) hours you worked over forty (40) hours in week 2.
Q: Is it legal that I am paid “comp time” instead of overtime?
A: Unless you work for the state or federal government, an employer providing compensatory or “comp time” instead of overtime pay is illegal.
Q: My employer tells me I am exempt from the overtime pay laws, am I?
A: Not necessarily. You are exempt based on your job duties and responsibilities and not based on what your employer calls you. It makes no difference if your employer calls you exempt or gives you a job title such as “manager” or “supervisor.” It is a common practice for employers to give workers the title of “Assistant Manager” to avoid paying overtime when those employees are not exempt and should be paid overtime.
Q: How do I find out if my job is exempt from the overtime laws?
A: Some job categories are exempt from the overtime requirements. However, these exemptions are narrowly construed against the employer claiming them, and the ultimate burden of proving that the exemption applies rests with the employer. Some jobs falling under the exemption provisions include commissioned sales employees of retail or service establishments, certain computer professionals, employees of motor carriers such as trucking companies if the employee’s duties include driving or loading vehicles that weigh more than 10,000 pounds, employees of certain seasonal and recreational establishments, farm workers employed on small farms, salesmen and mechanics employed by automobile dealerships, executive, administrative, professional or outside sales employees who are paid on a salary basis.
Q: Can I still be entitled to overtime pay if I am a salaried rather than hourly employee?
A: Yes. This is one of the common misconceptions about overtime pay. You are not exempt just because you are paid a weekly salary. If you are not otherwise exempt under the FLSA, your employer must convert your weekly salary to an hourly rate and pay you time and a half for all hours worked in excess of forty (40) hours. This applies to monthly and semi-monthly salaries as well.
Q: How do I calculate my overtime pay if I am paid per job that I complete?
A: To calculate your owed overtime, you must convert your “job rate” to an hourly rate. For example, let’s say you are a cable installer and you get paid $26.00 for each installation that you complete. You work 10 hours per day, five days per week and typically perform 20 installations in your regular work week. In a typical workweek, you make $400.00 ($26.00 x 20 installations) and work 50 hours per week. Therefore, you earn $8.00/hr ($400.00/50). Since you regular rate of pay is $8.00 an hour, your overtime rate is $12.00 (8.00 x 1.5).
Q: When should I file a claim against my employer?
A: The longer you wait, the less overtime pay you may be able to recover. It is also best to promptly pursue your claim so that time records and witnesses are readily available.
Q: Can my employer fire me for bringing an overtime claim against it?
A: No. It is illegal for an employer to fire or in any way retaliate against an employee because he or she has filed a claim for overtime against the employer. We will help protect you if your employer tries to retaliate against you for filing an overtime claim.
Q: What should I do if I believe that I am owed overtime pay?
A: You should seek legal advice. The overtime laws are highly technical and we can help apply the law to your special situation. We provide free consultations and will tell you if you are owed earned wages and if we can help you.
Q: How much does it cost to file a claim?
A: In most cases, all costs for overtime an unpaid wage cases will be advanced by our firm. Because our fee is typically contingent on a recovery from the employer, the firm does not get paid or reimbursed for expenses until the recovery is made.
Q: Do I have to pay attorneys’ fee to you if I lose my case?
A: No. We will only receive a fee if we are successful in resolving your claim.
Disclaimer
The information you obtain at this site is not, nor is it intended to be, legal advice. If you are seeking legal advice, we invite you to contact us. Please do not send any confidential information to us until an attorney-client relationship has been established. Illinois lawyers are not ethically permitted to call themselves a specialist or an expert in any specific practice area. Instead, Illinois lawyers and attorneys can say that they focus or concentrate in a specific area, like overtime pay or employment law. Werman Law Office’s practice is heavily focused in labor in employment law. Werman Law Office, P.C. provides legal representation, legal assistance, advice, guidance, and litigation services in human resources law, employee relations, labor relations, labor and employment law, wage and hour matters, and discrimination law. Werman Law Office, P.C. employs many of the most experienced and best Chicago Illinois overtime pay lawyers and best Chicago Illinois labor and employment attorneys. Werman Law Office represents workers across the United States and in overtime pay cases throughout Illinois, including Chicago, Waukegan, Rockford, Champaign, Naperville, Aurora, Joliet, Peoria, Decatur, Springfield, Danville, Bloomington, and DeKalb. Our overtime pay lawyers practice in Cook County, Lake County, DuPage County, Winnebago County, Kane County and every other Illinois county. Our labor and employment lawyers can explain the white collar exemptions to the Fair Labor Standards Act (“FLSA”) and the Illinois Minimum Wage Law (“IMWL”) and other state laws that require the payment of overtime pay, minimum wages, and other wages owed to employees. The current federal minimum wage is $5.85. In Illinois, the current minimum wage is $7.50. The Illinois minimum wage will increase by an additional 25 cents in each of the following three years to $7.75 on July 1, 2008; $8.00 on July 1, 2009; and $8.25 on July 1, 2010. The Illinois minimum wage was $6.50 per hour in 2005 and 2006. Overtime pay must be paid to most employees for work over 40 hours per week. We can help with your overtime pay claim throughout Illinois, including in Cook County, Lake County, DuPage County, Will County, McHenry County. Our “Chicago Overtime Pay Lawyers” can explain how to calculate overtime pay, what jobs are covered by the FLSA and IMWL and Illinois Wage Payment and Collection Act (“IWPCA”), explain overtime pay rules and overtime pay regulations, why even if you are paid a salary, overtime pay may still be required, who is overtime exempt, what are overtime exemptions and exclusions from the overtime laws, what is compensable work time and what work time, including on-call time and waiting time, that employees must be paid for. Werman Law Office, P.C. lawyers and attorneys are experienced in litigating and handling claims for unpaid wages, unpaid and owed overtime pay, federal and Illinois minimum wages, owed and unpaid vacation pay, owed and unpaid commissions, owed bonus pay and compensation, and other owed and unpaid wages in the federal courts, before the United States Department of Labor and the Illinois Department of Labor. The Chicago employment lawyers, Chicago overtime pay lawyers, Illinois employment lawyers, Illinois overtime pay lawyers, Indiana employment lawyers and Indiana overtime pay lawyers at Werman Law Office, P.C. represent persons directly or can help you obtain overtime and employment lawyers in other states and cities including finding San Francisco overtime pay lawyers, Oakland pay overtime lawyers, Los Angeles overtime pay lawyers, New York City overtime pay lawyers, Dallas overtime pay lawyers and Seattle overtime pay lawyers. Our Illinois and Chicago employment lawyers are also experienced in litigating sexual harassment lawsuits, USERRA claims, FMLA claims (medical leave), pregnancy discrimination claims, compensation discrimination claims, race discrimination claims, sex discrimination claims, religious discrimination claims, age discrimination claims, wrongful termination lawsuits, disability discrimination claims, retaliation claims, and wrongful termination claims under such laws as the Fair Labor Standards Act (FLSA), the Illinois Minimum Wage Law (IMWL), the Illinois Wage Payment and Collection Act (IWPCA), the Illinois Day and Temporary Labor Services Act (IDTLSA), the Equal Pay Act, Title VII, the Family and Medical Leave Act (FMLA), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and other state and federal laws protecting the rights of employees and working people. The Chicago labor and employment lawyers and Illinois labor and employment lawyers employed at Werman Law Office, P.C. are experienced and practice in the Federal Courts in Chicago and the Federal Courts elsewhere in Illinois and throughout the United States. Our lawyers are experienced in litigating claims before Illinois Courts, the Equal Employment Opportunity Commission (EEOC), the National Labor Relations Board (NLRB), the Illinois Department of Labor (IDOL), the Illinois Department of Employment Security (IDES), the Illinois Department of Human Rights (IDHR) and Illinois Human Rights Commission (IHRC). This site is not intended to provide specific advice. This site is instead intended to provide you information about and to assist you in deciding whether you should contact an employment lawyer to discuss whether you might have an overtime claim, minimum wage claim, a vacation pay claim, a claim for owed commissions, owed bonus pay, and or a claim for other owed wages or compensation, an Equal Pay Act Claim, Pregnancy Discrimination, Compensation Discrimination or claim for Sexual Harassment, a USERRA Claim, a FMLA Claim (medical leave), or a claim for Race Discrimination, Sex Discrimination, Religious Discrimination, Age Discrimination, Wrongful Termination, Disability Discrimination, retaliation, or wrongful termination claim. This site is not intended to provide legal advice. If you have questions, please contact a Chicago employment lawyer at Werman Law Office, P.C Read Full Disclaimer.
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