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Unpaid Overtime. Know the Facts.
Employment Law Attorney in Miami
The Fair Labor Standards Act (FLSA) requires that non-exempt employees—hourly,
and in many instances even salaried, employees—be paid time and
one-half of their regular rate of pay for any hours worked in excess of
Forty (40) hours in a work week. In addition to the amount of unpaid overtime
wages you may be owed from your current or previous employers, you can
also seek the recovery of liquidated, or double, damages, under the FLSA.
In general, the FLSA applies to covered businesses with annual revenues
in excess of $500,000/year with two (2) or more employees who have regularly
sold, handled, or otherwise worked on goods or materials that moved in
or produced for interstate commerce. Where a company itself is not covered
by the FLSA, an employee may nonetheless be individually covered by the
Act if their work directly involved interstate commerce on a regular basis.
In addition, domestic service workers such as housekeepers, full-time
babysitters, and cooks are typically covered by the FLSA.
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While there is no limit to the number of hours per day or week that an
employee can be asked to work under the FLSA, overtime compensation is
required for all hours worked over 40 hours in any single work week. Significantly,
however, the law requires employers to maintain accurate time records
of employees’ daily start times, stop times, actual hours worked
each day, and total number of hours worked each week. Additionally, employers
must maintain a clearly posted notice explaining the FLSA’s overtime
If your employer failed to keep the time records required by the law, you
can still seek the recovery of your unpaid overtime. The U.S. Department
of Labor now has an app that can help you record and calculate your hours
as well as the amount your employer may owe you:
Download here. Finally, overtime wages should be paid in the same pay period in which
any overtime hours were worked.
Your Work Is Our Business, if you believe you have not been fully compensated
for all of your overtime hours worked within the past three (3) years,
call (888) 315-8771 to learn how our Miami overtime attorney can help you.
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Common Overtime Violations
Many workers have a major misconception regarding overtime: employees often
believe that if they are not paid on an hourly basis, the overtime law
does not protect them. Contrary to this misunderstanding, the Fair Labor
Standards Act covers employees in a wide range of industries and through
a variety of payment methods, including employees paid on an hourly basis,
a salary, through commissions, on a piece rate basis, and based upon day
rates. Under the FLSA, an employee’s “regular rate”
is calculated based upon a number of factors, including the number of
hours of work that the wages were intended to compensate the employee
Below are examples of common overtime problems which you, or someone you
know, may have experienced, giving rise to a claim for unpaid overtime wages:
Misclassification as an “exempt” employee.
Your employer may wrongly classify you as “exempt” from overtime
pay and pay you a salary without additional compensation when you work
more than 40 hours per week—despite your primary duties being non-exempt
in nature. For example, if you’ve worked as a restaurant or office
employee on an hourly basis and your employer tells you that you’re
being promoted to receiving a salary with the title of “Assistant
Manager,” but your primary job duties continue to be performing
the same production work, you may have a claim for unpaid overtime wages
when you work in excess of 40 hours in any work week. A job title alone
does not determine whether you are eligible for overtime compensation,
and the FLSA’s exemptions have several elements that an employer
has the burden to meet.
Meal break deductions.
The FLSA requires that employees must be paid for all hours worked. The
law does not permit an employer to accept the benefits of an employee’s
work without compensating the employee for all work time. Rather, even
work not requested but suffered or permitted is compensable work time.
In this regard, rest or meal break periods of 20 minutes or less
may not be deducted from the hours worked by an employee and must, therefore,
be counted as hours of work. For example, for a 30-minute meal break to
be lawfully deducted, an employee must be completely relieved from duty
and not perform any duties for the employer. Many employers violate the
FLSA by automatically deducting 30-minutes from an employee’s total
hours without compensation even though no actual meal break was actually
taken. Similarly, if an employer clocks you out for 30-minutes in an effort
to reflect in its records that you were on a meal break—but you
were actually continuing to work throughout that period or took, for example,
only 5-10 minutes off before resuming working—you may have been
shorted unpaid overtime wages for any week in which you worked over 40 hours.
Not being paid for all hours worked or working “off the clock.”
Regardless of whether you are in the office or working from home, if you
are performing duties for the benefit of your employer, you are entitled
to compensation for all of your hours worked. For example, if your boss
asks you to do certain tasks before your shift begins, during a break
period, at the end of your shift, or from home at night or on weekends,
this is compensable working time under the FLSA. If your employer is not
properly tracking all of your actual work time, you may be owed additional wages.
Being given a “bonus,” or cash, for overtime hours instead
of time and one-half wages.
Under the FLSA, most employees are entitled to be paid time and one-half
wages for every hour worked over 40 hours in a single work week. This
is also true even if your boss gives you a “bonus,” or pays
you straight-time at your regular hourly rate—and tells you that
cash is acceptable consideration for the overtime hours you worked. Importantly,
under the FLSA, a private agreement made by an employer with an employee
to avoid paying time and one-half wages for all hours worked over 40 is
Being labeled as an “independent contractor.”
Independent contractors typically work on a contract basis for other businesses
and are often individuals are who self-employed. However, merely because
an employer labels you as an “independent contractor” does
not change the reality that under the law, you are an employee entitled
to overtime compensation. The key factors to consider in determining the
economic realities of whether you are really an employee frequently include:
(1) the nature and degree of the employer’s control of the manner
in which work is performed; (2) the employee’s opportunity for profit
or loss from the performance of the work; (3) whether an employee purchases
and provides the equipment, materials, and supplies necessary to carry
out the work—or hires other workers to carry out the work; (4) whether
the services require a specialized skill; (5) the degree of permanency
and duration of the working relationship; and (6) the extent to which
the worker’s services are an integral part of the employer’s
business. If you believe you were misclassified as an ‘independent
contractor,” contact us for a free evaluation to determine if you
may be entitled to overtime pay.
Not being compensated for overtime hours in sales and commission-based jobs.
While there are exemptions to the FLSA’s overtime provisions in
some instances, just because you are paid either entirely or partially
through commissions does not mean you are excluded from recovering overtime
compensation. The FLSA’s retail, or commission, sales exemption
has a number of technical requirements that employers frequently cannot
meet because of the complexity of the law, including for example, whether
more than Fifty percent (50%) of an employee’s total compensation
for a representative period comes from commissions and whether the employee’s
regular rate of pay is greater than time and one-half of the minimum wage—meaning
that your effective hourly rate when calculated is more than $10.88/hour—for
every hour worked in any week in which overtime hours are worked.
Being paid on a piece rate basis without overtime compensation.
If you work in completing installations, on construction projects, or
in any other field where you are paid on a piece rate basis, the nature
of your work typically doesn’t change you entitlement to additional
compensation for your overtime hours. Rather, because the manner in which
you are compensated does not, alone, determine your eligibility for overtime,
you may be entitled to recover additional compensation for the work you
Being offered “comp time” instead of overtime pay.
Instead of paying overtime wages, some employers give workers “comp
time”—or hours that can be used toward vacation or other time
off—in lieu of paying time and one-half wages for hours worked in
excess of 40 hours per week. Private employers may not substitute “comp
time” for overtime pay when an employee works more than 40 hours
in a week.
Call today to discuss your employment law issue with the Law Office of
Keith M. Stern, P.A. during a