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.
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 requirements.
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.
Because 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 305-901-1379 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 for working.
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 generally unenforceable.
- 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 performed.
- 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.