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WAGES AND OVERTIME
The Fair Labor Standards Act (FLSA) requires that non-exempt employees
receive overtime pay equal to 1.5 x their regular hourly pay for any hours
worked over 40 in a week (overtime). This can happen if employees work
more than eight hours a day, or more than five days a week. An employer
may require employees to work overtime hours, but the employer must give
the employee overtime pay.
Many employers try to avoid paying overtime by simply paying their
employees a salary, even though the employees are working more than 40
hours in a week. In such cases, the employees are still entitled to overtime
pay if they are non-exempt. The overtime wages are calculated by dividing
the weekly salary by 40 (or a bi-monthly salary by 80) to get the regular hourly
rate and then multiplying that by 1.5 to get the overtime rate.
Overtime pay that has not been paid can still be collected up to two years
from the date the pay was earned, and up to three years if the employer was
consciously violating the law. In addition, where the employer's failure to pay
overtime is intentional, the employer can be required to pay an additional
amount of money equal to the amount owed. This is known as liquidated
damages and its intention is to punish the employer.
The FLSA's overtime provisions do not apply to every company. Only
companies whose gross receivables exceed $500,000 per year are required
to pay overtime. But the $500,000 means the amount of money coming in,
not the amount of profits the company received. So a small independent dry
cleaners for example may make $700,000 in a year and be covered even
though it has expenses of $400,000 and therefore has a profit of only
$300,000. In addition, some cases have indicated that the $500,000 limit is
an approximation and a company that makes a little less may still be
covered. Note that, unlike discrimination laws or the Family and Medical
Leave Act, the number of employees makes no difference.
Unlike the Family and Medical Leave Act, it makes no difference how long
you have worked for an employer. An employee is entitled to overtime pay in
the first week that he works more than 40 hours. The key is that not all
employees are covered by the law. The law differentiates between "exempt"
employees – employees that are not covered by the law – and "non-exempt"
employees who are covered by the law.
An employee who is paid by the hour and not by salary, is automatically non-
exempt and is entitled to overtime pay for working more than 40 hours in a
week. But one must actually be an employee and not an independent
contractor (that is you must actually be an employee of the company and not
be your own business doing work for the employer).
Generally, high paying executive, professional, or managerial jobs are
exempt and therefore cannot get overtime pay. Executives are people who
are officers of corporations or have a very high degree of responsibility.
Professionals are usually people who have to have special educational
achievements like, lawyers, architects, doctors, and teachers. Managers are
usually people who supervise others. But just because a job title is has the
word "manager" in it does not make it exempt. The key is what work the job
does.
Employers often make mistakes in deciding which employees are exempt
and which are not. Sometimes they even try to trick employees into thinking
that they are exempt (not entitled to overtime). You may still be entitled to
overtime pay even if: 1) you are on a salary; 2) you have the word manager in
your title; 3) your employer says you are an independent contractor (you
might not be); or 4) your employer just tells you that you are exempt. Another
common trap is for employers to pay employees their regular hourly rate for
hours over 40 in a week. If you make $10 per hour and in a 50 hour week you
are paid only $500 ($10 x 50 hours), you are still owed an additional $50
because the last 10 hours your overtime pay was $15, not $10. You should
have gotten time and a half. These calculations can be tricky and you should
review them with an employment lawyer or labor lawyer.
It is also illegal for an employer to retaliate against an employee for asking
for his overtime pay, for contacting an attorney, or even filing a claim. If you
complain of not receiving overtime pay and your employer fires you, you have
a claim for retaliation. This is a separate violation of the law and you should
definitely consult an employment lawyer.
If you have not been paid overtime, or have only been paid your regular wage
for overtime hours, you may be entitled to more money. The overtime and
wage laws are very complex. Give us a call.
Contact Us
info@thealderlawfirm.com
receive overtime pay equal to 1.5 x their regular hourly pay for any hours
worked over 40 in a week (overtime). This can happen if employees work
more than eight hours a day, or more than five days a week. An employer
may require employees to work overtime hours, but the employer must give
the employee overtime pay.
Many employers try to avoid paying overtime by simply paying their
employees a salary, even though the employees are working more than 40
hours in a week. In such cases, the employees are still entitled to overtime
pay if they are non-exempt. The overtime wages are calculated by dividing
the weekly salary by 40 (or a bi-monthly salary by 80) to get the regular hourly
rate and then multiplying that by 1.5 to get the overtime rate.
Overtime pay that has not been paid can still be collected up to two years
from the date the pay was earned, and up to three years if the employer was
consciously violating the law. In addition, where the employer's failure to pay
overtime is intentional, the employer can be required to pay an additional
amount of money equal to the amount owed. This is known as liquidated
damages and its intention is to punish the employer.
The FLSA's overtime provisions do not apply to every company. Only
companies whose gross receivables exceed $500,000 per year are required
to pay overtime. But the $500,000 means the amount of money coming in,
not the amount of profits the company received. So a small independent dry
cleaners for example may make $700,000 in a year and be covered even
though it has expenses of $400,000 and therefore has a profit of only
$300,000. In addition, some cases have indicated that the $500,000 limit is
an approximation and a company that makes a little less may still be
covered. Note that, unlike discrimination laws or the Family and Medical
Leave Act, the number of employees makes no difference.
Unlike the Family and Medical Leave Act, it makes no difference how long
you have worked for an employer. An employee is entitled to overtime pay in
the first week that he works more than 40 hours. The key is that not all
employees are covered by the law. The law differentiates between "exempt"
employees – employees that are not covered by the law – and "non-exempt"
employees who are covered by the law.
An employee who is paid by the hour and not by salary, is automatically non-
exempt and is entitled to overtime pay for working more than 40 hours in a
week. But one must actually be an employee and not an independent
contractor (that is you must actually be an employee of the company and not
be your own business doing work for the employer).
Generally, high paying executive, professional, or managerial jobs are
exempt and therefore cannot get overtime pay. Executives are people who
are officers of corporations or have a very high degree of responsibility.
Professionals are usually people who have to have special educational
achievements like, lawyers, architects, doctors, and teachers. Managers are
usually people who supervise others. But just because a job title is has the
word "manager" in it does not make it exempt. The key is what work the job
does.
Employers often make mistakes in deciding which employees are exempt
and which are not. Sometimes they even try to trick employees into thinking
that they are exempt (not entitled to overtime). You may still be entitled to
overtime pay even if: 1) you are on a salary; 2) you have the word manager in
your title; 3) your employer says you are an independent contractor (you
might not be); or 4) your employer just tells you that you are exempt. Another
common trap is for employers to pay employees their regular hourly rate for
hours over 40 in a week. If you make $10 per hour and in a 50 hour week you
are paid only $500 ($10 x 50 hours), you are still owed an additional $50
because the last 10 hours your overtime pay was $15, not $10. You should
have gotten time and a half. These calculations can be tricky and you should
review them with an employment lawyer or labor lawyer.
It is also illegal for an employer to retaliate against an employee for asking
for his overtime pay, for contacting an attorney, or even filing a claim. If you
complain of not receiving overtime pay and your employer fires you, you have
a claim for retaliation. This is a separate violation of the law and you should
definitely consult an employment lawyer.
If you have not been paid overtime, or have only been paid your regular wage
for overtime hours, you may be entitled to more money. The overtime and
wage laws are very complex. Give us a call.
Contact Us
info@thealderlawfirm.com