Overtime/Wage and Hour Disputes

An employee is at a disadvantage when an employer mistreats him or her because asserting his or her rights can lead to job loss. The most common way employees are abused involves compensation. Federal and state wage and hour laws and local ordinances were enacted to protect employees who are abused by their employers. The most well known law in this area is the federal Fair Labor Standards Act (FLSA), which was enacted during the Great Depression.

Your employer is required to pay you a minimum wage under both FLSA and state laws. The current federal minimum wage is $7.25 per hour, but some states have instituted a higher minimum wage. An employer’s failure to pay you minimum wage or overtime, or failure to abide by other provisions of wage and hour laws, may give rise to a wage and hour dispute.

In many cases, you must be paid for travel time or time spent on the job, even if you are just “standing.” Your wages may not be docked below minimum wage, and it is illegal to withhold your final paycheck.

How Is Overtime Calculated?

The FLSA and state laws also require that you be paid overtime wages if you are a “non-exempt employee.” Non-exempt employees are entitled to time and a half wages for every hour worked over 40 in a single five-day workweek. In general, a non-exempt employee cannot be forced by his or her employer to waive the right to overtime, but FLSA doesn’t protect employees who over-report overtime or work overtime in contravention of an employer’s conspicuously posted rule or policy that prohibits overtime work. State laws or individual company policies govern whether you must also be paid for “extra time” or time worked on holidays, as well as meal breaks and rest breaks.

There are many situations that may entitle you to overtime pay. For example, if you come to work earlier than your starting time and do light work at the request of the employer, this may be overtime. Or if an employer asks you to work through a set lunch break, this may qualify as overtime. If you are required to stay overnight for an out-of-state assignment, you may be entitled to overtime. In general, employers must give their non-exempt workers as much advance notice as they can if they expect them to stay late or work overtime. They are also expected to rotate overtime among non-exempt workers.

If you are not paid overtime when it is due, you may be entitled to recover overtime compensation and an equal amount of liquidated damages, as well as attorneys’ fees and costs. An employer that commits willful violations may have to pay punitive damages and overtime for up to three years back.

Certain salaried employees are “exempt” from these rules. To be exempt, an employee must be paid at least $23,600 per year, paid on a salary basis, and perform exempt job duties.

The second and third requirements can be challenging to determine. Generally, an employee is paid on a salary basis when he or she has a guaranteed minimum amount of money that he or she can depend upon receiving for a workweek during which he or she performs any work. “Exempt job duties” are high-level and can be categorized as “executive,” “administrative,” or “professional” work.

Executive job duties are those in which an employee supervises two or more employees, has management as a primary duty, and has genuine input into other employees’ job status. Professional employees are those in the traditional “learned professions,” such as lawyers, doctors, dentists, clergy, architects, and a few other categories.

The most challenging analysis is for “administrative” employees. Typically, they must do office work directly related to the management or business operations of the employer or its customers. Their job duties usually involve significant exercise of independent judgment and discretion about matters of significance. A secretary may hold the job title “administrative assistant,” but he or she will not be considered an administrative employee for purposes of determining exempt status. Independent contractors, outside salespeople, certain retail employees, amusement and recreation park employees, and employees in bona fide executive, administrative, or professional jobs are exempt from FLSA.