Q: What do the terms overtime hours and overtime pay mean?
Overtime hours means the time an employee works more than 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/hour, that employee is entitled to make $12/hour for all the overtime hours he or she works.
Q: What are unpaid wages?
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 (3) a paycheck that your employer never paid you.
Q: Who must be paid overtime pay?
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?
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?
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?
No. Overtime pay must only be paid when you work more than 40 hours in week, and not more than eight hours in any one day.
Q: What am I entitled to receive if I file an overtime lawsuit and win?
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?
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?
The FLSA contains a two-year limitation period. That means you can recover overtime for the two (2) years 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?
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?
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 an independent contractor?
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?
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?
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 40 hours. In the above example, you are entitled to receive overtime pay for the 10 hours you worked more than 40 hours in week two.
Q: Is it legal that I am paid “comp time” instead of overtime?
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?
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?
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, outside sales persons, 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?
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 40 hours. This applies to monthly and semimonthly salaries as well.
Q: How do I calculate my overtime pay if I am paid per job that I complete?
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 your 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?
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?
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?
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?
In most cases, all costs for overtime and 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 fees to you if I lose my case?
No. We will only receive a fee if we are successful in resolving your claim.