What Are Your Rights if Your Employer Does Not Pay You Overtime?

Effective December 1, 2016, new provisions in the Fair Labor Standards Act have gone into effect regarding how overtime is paid. The FSLA now requires all employees covered by the Act, unless exempt, to be paid at least one and one-half times their regular rate of pay for any hours over 40 in a workweek. Exempt workers are those who earn a salary of more than $455 a week, rather than an hourly wage. There is no limit on the number of hours employees 16 or older may work.

A workweek is defined as a regularly recurring fixed period of 168 hours, aka a full week. An employer cannot average an employee’s hours over two weeks, even if the employee is paid bi-weekly, and overtime should be paid on the regular payday for the pay period in which the wages were earned.

The update of overtime regulations is expected to extend protection to more than 4 million employees during the first year of implementation, giving their paychecks a boost and ensuring they are fairly compensated for their labor. Learn more about the new provisions at https://www.dol.gov/whd/overtime/final2016/.

What are the Employee’s Rights?

If an employer violates the overtime law and fails to provide an employee with compensation to which they are legally entitled, that employee has the right to seek relief for what is known as “wage theft.” If an employee believes they’ve been denied proper compensation for overtime, they may file a lawsuit, or file a complaint with the Wage and Hour Division of the US Department of Labor. Complaints with the Wage and Hour Division are subject to a statute of limitations and must be filed within 2 years of the violation, and the Wage and Hour Division recommends the complaint be filed within 18 months. Complaints can be filed by mail or in person and should include the following information:

  • Employee’s name, address, and phone number,
  • Employer’s name, address, phone number, and type of business,
  • Information about pay, including hourly page, how often paid, and method of payment,
  • A description of the alleged violation(s),
  • Date(s) of the violation(s).

Once a complaint is filed, the Wage and Hour Division will conduct an investigation and help the employee recover any wages to which they were legally entitled but not paid.

For more information on how to file a complaint with the Wage and Hour Division of the US Dept. of Labor, visit: https://www.dol.gov/wecanhelp/howtofilecomplaint.htm

Filing a Lawsuit

A skilled attorney can also help someone further understand the rights and protections afforded to them by the FSLA, and help them pursue any wages they may have been improperly withheld from them by various means, including filing a lawsuit. Attorneys expert in labor law help employees recover millions of dollars annually in unpaid wages and overtime.

There are a number of ways in which an employer can violate overtime laws. Common violations include:

Asking an Employee to Work During Lunch or Meal Breaks

An employee may be interrupted during their lunch or meal breaks to handle an important phone call or other urgent matters. When this occurs, the employee is entitled to be compensated for this time. An employee should keep a written record of these events as they occur.

Failure to Pay for All Hours Worked

There are state and federal laws in place to prevent an employee from not being paid for all hours worked. If this occurs, an attorney can aggressively pursue an employer who denies an employee the wages to which they are legally entitled.

Failure to Compensate for On-Call Work

Some employees, such as IT workers, maintenance staff, roadside service technicians, certain medical professionals, first responders, and many others may perform on-call work, meaning they need to be available to an employer as needed during certain hours. At a minimum, an employer is required to pay an on-call worker for the hours of actual work performed. Under some circumstances, an employee may be entitled to wages for the entire period they are on-call. Any employee should keep a record of all on-call time, including actual hours work to confirm they are appropriately compensated, or to use as evidence if they are not appropriately compensated.

Manipulation of Employee Time Records

There have been countless suits and complaints filed related to employer’s altering their employee’s time records to avoid paying the overtime to which the employee is entitled. This is strictly illegal, even if the employer did not authorize the overtime. When this type of event occurs, an attorney can help protect the employee’s rights and ensure they receive the wages, including overtime, to which they are entitled.

Calculating Overtime Based on a Two Week Pay Period

Many employers pay their employees every two weeks. Some employers attempt to avoid overtime by averaging the hours of a two-week pay period. For example, an employee may work 45 hours the first week of the pay period, and in an attempt to avoid overtime, the employer may give them only 35 hours in the second week, for a total of 80 hours, which averages out to 40 hours per week. This is illegal.

Overtime is based on a 7-day workweek and is paid on anything in excess of 40 hours in that 7-day workweek. The number of hours worked in the second week of the pay period do not factor into whether an employee would be entitled to overtime in this example. If an employee finds themselves subject to this type of conduct by their employer, they should contact an attorney knowledgeable in labor law to fight for their rights.

Paying a Salary Instead of Hourly Wage

An employer may try to avoid overtime by paying a salary instead of an hourly wage. However, salaried employees may not be exempt from overtime under certain circumstances. A truly exempt salaried employee must make over $455 a week, primary duties must include management of 2 or more full-time employees, and you must have the authority to hire or fire, or serious weight given to your recommendations to hire, fire, promote, or initiate any other change in employment status. Employees receiving a salary whose duties do not qualify their position as exempt are legally entitled to overtime based on their weekly salary divided by 40 hours, then multiplied by 1.5. Read more about exempt employees at https://www.dol.gov/whd/overtime/fs17b_executive.pdf

Requiring an Employee to Perform Work-Related Functions off the Clock

Some employees may have a required setup or closing procedure at the beginning or end of their shift. Some employees may be told they have to complete certain tasks by day’s end but overtime is not authorized. Any time an employer requires an employee to do work off the clock, they are violating the law and the employee is entitled to compensation for that time.

Withholding the Final Paycheck

An employer may choose to withhold an employee’s final check because they did a poor job, didn’t provide notice or a host of other reasons. This is illegal under both state and federal law. The last paycheck must be issued as scheduled. If an employer attempts to withhold an employee’s last check, an attorney can help the employee receive the compensation to which they are entitled.

Failure to Pay for Travel Time

This area is complex and can be easily misunderstood. An attorney well versed in labor law can assist an employee in determining if they are entitled to compensation for travel time.

Failure to Pay for Training Time

Employees are typically entitled to paid time for training under state and federal law. If any employer tells you otherwise, contact an attorney well versed in labor law. Many attorneys will provide a no-cost consultation to help you determine your rights in this situation.

Labor law, including regulation related to overtime, can be complex. Very specific steps are required to take legal action, and it is always in your best interest to contact a lawyer familiar with labor law to discuss your rights and options.

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