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Overtime Wage Claims
The Fair Labor Standards Act (FLSA) requires employers to pay non-exempt employees overtime pay at the rate of one and one half times (1-½) their regular rate of pay if the employee works more than 40 hours in a work week. Most employees qualify to receive overtime pay with a few exceptions.
Some employers violate the FLSA by using one the following tactics to avoid paying overtime:
Some states have their own laws concerning overtime and minimum wage claims. Under these laws you may be entitled to overtime that is calculated at higher rates than the FLSA.
Special rules apply to employees of federal, state and local governments in the areas of fire protection and law enforcement, volunteering and compensatory time. A limited partial overtime exemption applies to law enforcement and fire protection employees.
The FLSA is a federal labor law that provides within its provisions for employers to pay the legal minimum wage, establishes record keeping and child labor standards, and requires that most employees be paid time and one-half for all overtime “hours worked.”
Overtime is defined as any work performed in excess of 40 hours per work week.
Overtime should be paid for any hours worked over 40 hours in a workweek if you are a qualifying employee. A workweek means a period of 168 hours during 7 consecutive 24 hour periods. Overtime must be calculated weekly. This means that even though an employee may be paid bi-weekly (receiving a paycheck for two workweeks), overtime should be calculated based on 40 hours of consecutive work in a week.
No, overtime is owed only after 40 hours worked in a workweek.
Overtime pay is defined as one and one-half times your regular rate of hourly pay. For example if your normal rate or hourly pay is $10 per hour, your overtime rate of pay would be $15.
Bonuses should be included in calculating overtime pay when they are tied to performance, quotas or other requirements and are not discretionary. If your boss gives you a Christmas bonus, this would be considered a discretionary bonus and would not be required to be included in calculating your overtime rate.
The only time an employer can pay comp time instead of overtime is when the employee is a government worker.
Your employer has the responsibility of maintaining accurate and complete records of the time worked by their employees. If for any reason your employer cannot product records to substantiate overtime pay, the employee is entitled to recover based on “good faith, reasonable and realistic estimates.”
The best and most successful way to recover overtime pay is retain an attorney experienced in handling overtime wage claims. Contact our office for a free, no obligation consultation.
Under the FLSA you can recover overtime pay up to the two years prior to the filing of a lawsuit. If your employer is found to “knowingly, willfully or recklessly” violate FLSA laws, you may be able to recover overtime wages from as far back as three years prior to the filing of a lawsuit.
You can be awarded all unpaid overtime for two and in some cases, three years. A judge may also award “liquidated damages” that can equal the amount of unpaid overtime you are owed. A judge may also award any attorney’s fees and expenses you have paid your attorney to handle your lawsuit.
There are many factors that affect how long the process takes. In most cases an experienced attorney can settle your case before a trial begins. However, if the case is not settled before trial the process can take several months to several years.
Donald W. Fohrman & Associates, Ltd., handles overtime cases on a contingent fee basis. This means that you pay no upfront fees or retainers. Our fees are deducted from any settlement or judgment you may receive.
The FLSA provides that you employer cannot retaliate against any employee who exercises their rights under the FLSA. If your employer knowingly and willfully harasses, demotes or terminates you in retaliation for exercising your rights under the FLSA, he can be subject to large fines. The FLSA also provides that if the retaliation is extreme enough, your employer can also be subject to jail time.
Collective bargaining agreements have no affect on your rights to overtime pay under the FLSA.
Your rights under the FLSA cannot be waived or diminished under a collective bargaining agreement. In fact, if your collective bargaining agreement is more favorable than the provisions of the FLSA, you would be entitled to whatever rights and benefits you are entitled to under your agreement.
If an employee is paid a a flat or fixed salary each workweek for hours that change from week to week, the employer may use an overtime calculation method called “fixed salary for fluctuating workweeks”. This is is also know as “Chinese overtime”.
While computing overtime using this method is to the benefit of the employer, certain requirements have to be met. In order for the employer to apply the “Chinese overtime” method to calculate overtime, the employee must have a work schedule with fluctuating hours. The employee must also be a paid a fixed salary for straight time for all hours worked in a work week. An employer cannot make any deductions from the fixed salary if the employee works less than 40 hours per work week.
Additionally, the employee must be paid at a rate high enough that the regular rate will never be below the federal minimum wage.
In calculating overtime, the regular rate is determined by dividing the fixed salary by the number of hours worked that week. Since the employee is already being compensated at straight time for all the hours worked, overtime would then be paid at half-time instead of time and one-half.
The result is that straight time is only paid once, so the overtime hours will be paid at half the regular rate. In a workweek when the employee’s number of overtime hours worked is high, the regular rate will be lower. The overall hourly cost per hour for the employer will be lower. However, if an employee works less than 40 hours a week, the employer must pay the full fixed salary.
Hours worked on weekends and holidays are treated like hours worked on any other day of the week and are not subject to automatic overtime pay.
Neither you or your employer can waive your right to overtime pay. If you work overtime and you are a non-exempt employee, your employer must pay overtime pay for any overtime hours worked. You are also entitled to overtime pay even if your employer states they have a “no overtime” policy but allows you to work overtime anyway.