The federal overtime law (Fair Labor Standards Act or FLSA) is one of the most violated labor laws. Most workers should get paid overtime. The basic protection of the law is that a covered employee is entitled to overtime at the rate of time and one-half for all hours actually worked over 40. Even undocumented workers are entitled to be paid time and one-half for hours over 40.
The federal overtime law was enacted in 1938 during the great depression as part of the new deal social legislation. The overtime law is part of the same law which governs the minimum wage. Interestingly though, the overtime provisions do not just apply to minimum wage or low wage workers, but apply to virtually everyone. Time and a half is to be calculated on the basis of the regular hourly rate, no matter how much or how little you make, and regardless of whether you are paid by salary, hourly or commission or some combination.
Here are the basic principles for determining whether you are entitled to overtime. Generally, if your employer “suffers or permits" you to work, it must be counted as work time. The employer cannot argue they didn’t want you to do the work, if they knew or should have known you were doing it.
If the activity you do benefits the employer it is considered work. Short breaks are considered to be work time for the reason that these breaks really benefit the employer, by increasing productivity. If you are free to do whatever you want with the time off (such as lunches of one half hour or more), the time is considered to be free time, not work time.
If your employer fails to pay you overtime, you have the right to bring a legal claim for double the amount that you were shorted. A claim can generally be brought only for unpaid overtime wages within the last two years. If the employer’s failure to pay the wages is “willful" you can get back pay for the three prior years. The double damages can make even small claims worth your while to collect.
You cannot be fired or retaliated against for bringing an overtime claim to court or for contacting the U.S. Department of Labor to file an administrative claim. But, some courts have said the law does not protect someone who complains directly to the employer about their right to overtime pay. So if you are interested in finding out whether you are entitled to overtime pay, the employer is not the best place to start asking. Instead, it would be more advisable to contact an experienced labor lawyer or the US Department of Labor to see if you have a valid claim.
Another interesting side of the overtime law is that if an employee wins an overtime claim, the employer must pay the employee’s legal costs and attorneys’ fees. This makes it possible for a labor lawyer to represent you without having to pay money up front, in many cases.
Some employers try to get out of paying time and one half by paying “comp time." Comp time is not a permissible substitute for time and one half. The only workers who can legitimately accept comp time instead of time and a half are government workers who individually agree to accept comp time, or where their union has agreed to accept comp time.
One of the major ways that employees get cheated is by not being paid for all the hours that they really worked. Sometimes its not so easy to tell what is considered “work time." For example, breaks of 20 minutes or less generally must be considered to be work time and you must be paid for those breaks. An employer need not count lunches of ½ hour or more as work time if the employee is free to spend lunch as they wish. Time spent listening to the bosses instructions is work time. Time spent cleaning machinery and the job site is work time. So is work you do for your employer at your home, whether it is on the clock or not. Work that is paid by the piece or by the job, instead of by the hour must still work out to be paid at the rate of time and one half if the regular work hours are more than 40. “On-call" and “on-beeper" time may not be required to be considered as work time, if you are partially free to do other things. There are some complicated rules that apply to determine whether you must be paid overtime for this time.
There are some exceptions to the overtime law. Independent contractors have no right to overtime. Many workers that are treated as contractors however, are really being cheated by their employer by being mis-classified as independent contractors. Most manual laborers who are being treated as contractors are probable really employees and therefore entitled to overtime.
The other major exception to the overtime law is for certain salaried workers. There are stringent tests for which salaried workers are allowed not to be paid overtime. In some instances, the employer is wrongly treating workers as exempt from the overtime laws simply because they are paid on a salary basis. Any worker who is subject to a reduction in pay for the quality or quantity of work, or who is subject to reduced pay for disciplinary reasons, is probably not a true “salaried" worker and so must be paid overtime.
Some other workers excluded from the overtime law are some seasonal camps and fair workers, most agricultural work performed on a farm, small newspaper workers, domestic servants and certain caregivers for the old or infirm. And, there are other miscellaneous exceptions.
The overtime law is one of the basic rights of U.S. workers. Even undocumented workers can successfully bring claims for their back pay. If you are being cheated out of your proper pay, do something about it. The law is sometimes complex and there are exceptions and technicalities that may apply to your particular case.
To take an automated on-line questionnaire to determine if you were entitled to overtime pay, go to http://www.getmanlaw.com/questionnaire/ |
