Overtime Law
Common FLSA Employer Violations
Below are very common employer mistakes. We encourage you to contact Consumer Law Organization, P.A. if any of the scenarios below have happened to you, please contact us for a free consultation. We may be able to help you recover a substantial amount of money.
1. Believing salaried employees are automatically exempt from overtime.
Just because you are paid a straight salary, no matter how large the salary, DOES NOT mean that you are exempt from overtime. Each individual employee must qualify for one of the specific exemptions provided by the statute. Other less common exemptions include the executive exemption, administrative exemption, professional exemption, computer-employee exemption and outside sales exemption. Each exemption has specific tests, and each employee to whom a salary is paid must be evaluated to see whether the exemption applies. Don’t forget that job titles and job descriptions aren’t the determining factor any more than paying a salary is - just because you are called a manager or an assistant manager and are paid a salary does not mean that you are exempt from overtime. The courts and Department of Labor construe all of the exemptions narrowly, and the burden of proof always remains with the employer.
2. Misclassifying assistant managers.
Many businesses pay a salary to their assistant-manager-level employees without paying them overtime and without considering whether they truly qualify for the executive exemption. In order to qualify for the executive exemption, an assistant manager must be paid on a salary basis at a rate of at least $455 per week. In addition, the employee must meet each of the following three tests: 1) their primary duty is management of the enterprise or of a customarily recognized department or subdivision; 2) they must customarily and regularly direct the work of two or more other full-time employees or the equivalent; and 3) they must have the authority to hire or fire, or make suggestions and recommendations as to hiring, firing, advancing, promotions or other status changes that are given particular weight. For example, if you have a store that regularly has a manager, assistant manager and a few hourly employees on duty, it is unlikely that both the manager and assistant manager will qualify for the exemption. Although many assistant managers will qualify for the exemption, many others will not, and each employee must be reviewed on an individual basis.
3. Automatic deductions for meal breaks.
Many employers automatically dock their hourly employees for a 30- or 60-minute meal break each day. In order to dock your weekly pay, you must be COMPLETELY FREE of any and all job duties during your break period. If you routinely work through lunch, or answer company telephones during lunch etc., please contact Card & Glenn immediately.
4. Not paying for overtime that has not been approved in advance.
Many companies have a policy requiring employees to seek approval in advance before working overtime. The problem arises when an employer refuses to pay an employee for non-approved overtime. The FLSA does not distinguish between approved and non-approved overtime—if you work the overtime hours, you are entitled to be paid time and one-half the regular rate for that overtime.
5. Allowing employees to "waive" their right to overtime.
Another common mistake, particularly among small businesses, is believing that an employee can waive his or her right to time and one-half pay for all overtime hours. Frequently an employee requests extra hours and agrees that he needs only to receive his regular pay for those hours. Sometimes this request is made out of a belief that other employees might be hired and everyone’s hours will be cut, or sometimes from an employee’s particular need for some extra money. A related problem sometimes arises when employees are paid out of two different locations or two companies owned by the same person. For example, an employer might own two ice cream stores, each of which is separately incorporated. If an employee works at both stores during a workweek for a combined total of more than 40 hours, that employee must be paid time and one-half for all hours beyond 40. The individual owner of stores cannot circumvent the overtime requirement (whether intentionally or otherwise) by paying an employee out of different stores or corporations. If this has happened to you, please contact Consumer Law Organization, P.A.immediately.
Other common employer overtime violations include:
Paying “straight time” wages for overtime hours worked – paying you the same hourly rate even for hours over the standard Forty (40). Employers often pay these extra wages in cash.
Not keeping accurate (or any!) time records of your daily start times, stop times, and actual total hours worked each week.
Deducting time each day for “meal breaks” even if you worked through your “so-called” break.
Paying only a salary, regardless of hours worked – even if you are paid a salary you are entitled to overtime compensation.
Giving you the title of “Manager,” “Supervisor,” or “Foreman” but having you perform the same, or similar, job duties as other non-exempt workers on the job.
Requiring you to perform work “off the clock” at the beginning or end of your work day.
Paying commission wages – even if you are paid partially, or entirely, through commissions, you are often entitled to overtime pay for hours worked over Forty (40) in a week.
Providing “comp time” benefits in lieu of overtime wages – the law generally prohibits private employers from giving you “comp time” instead of overtime compensation for hours worked over Forty (40) in a week. You cannot waive your right to overtime – it’s the law!
Not paying overtime wages for time youspend traveling from one job site to another during the course of your work day.
Misclassifying you as an “Independent Contractor” despite your performing the job duties that an employee does.
Not calculating your overtime rate including any and all commissions and bonuses, as the law requires.
Click here to ask Dennis Card a question about your overtime issues.
