Employees who work more than 40 hours a week are legally required to be paid overtime by most employers in the United States.
Originally, this rule was intended to eliminate unemployment as many as possible. These days, overtime tends to be seen as an employee right rather than an economic stimulus program. Employees who work more than a standard workweek should be paid more. However many employers are avoiding paying overtime pay by keeping creative time records, misclassifying employees, and miscalculating wages.
In this article, you’ll learn about basic overtime rules, some common overtime violations, and what you should do if you suspect your employer is violating the law.
The Overtime Process
According to the Fair Labor Standards Act (FLSA), employers who hire covered employees must pay them 150% of their regular hourly wages every time they work more than 40 hours per week. A large number of employers are covered by the FLSA. Not all employees of covered employers are entitled to overtime pay, however.
Who Is Exempt from this Law?
Employees who fall into an exemption from the FLSA overtime rules are not entitled to overtime if they work more than 40 hours in a week. Overtime-eligible employees are referred to as “nonexempt.”
Newspaper delivery agents, seamen, workers on small farms, and outside salespeople are all excluded from the FLSA. But the vast majority of disputes revolve around the exclusions for executive, professional, and administrative employees, so-called “white collars.”
As a general rule, these employees are exempt if they are paid at least $455 a week and have job duties that require advanced degrees, are managerial in nature, or involve fairly high levels of responsibility.
State Legislation Governing Overtime
In addition, many states have their own overtime laws. Workers are eligible to the protections afforded by the more protective statute, whether federal or state-level. In a couple of key ways, state overtime regulations differ from the FLSA.
For starters, states may exclude and include different types of employees, so you may be eligible to overtime under federal law but not under state law (or vice versa). Second, just a few states impose daily overtime restrictions. A California employee, for example, is eligible for overtime after working eight hours on a day, regardless of the number of hours worked in a week.
Overtime violations That are Commonly Committed
There are three main categories of overtime violations:
- Misclassification of employees as exempt
- Counting only working hours, not including overtime
- An incorrect calculation of hourly wages.
Problems Associated with Misclassification
In terms of employee classification, here are some common violations:
- Several employees are classified as exempt “managers” (or assistant managers) despite the fact that their duties are identical to those of the people who supposedly report to them
- Whenever an employee’s job doesn’t require discretion and independent judgment, classifying them as exempt under one of the white-collar exemptions
- Instead of paying employees a true “salary” that doesn’t fluctuate according to production or hours worked, paying them a salary based on the number of hours worked each week
- Paying employees a salary of less than $455 per week and docking employee pay for productivity, hours, or performance.
Undercounting Worked Hours
A company can violate the law even if it properly classes an employee as nonexempt by undercounting their hours, for example:
- Employers requiring employees to work “off the clock” (before they clock in or after they clock out)
- Providing unpaid rest breaks and meal breaks to employees
- The practice of expecting or requiring employees to work extra hours at home without being compensated
- Workplace protective gear and clothing aren’t counted as time spent changing or putting on and taking off
- Employees do not count time spent traveling to and from work (for example, if they are required to report to a particular location, then are driven from there to a worksite), and
- Excluding time consumed training and other required activities.
An Incorrect Hourly Rate Calculation
Extra pay is calculated by multiplying the regular hourly rate by 150%. However, some employers fail to factor in all required compensation when figuring that wage. Here are some mistakes employers make:
- In calculating the employee’s hourly rate, wages, commissions, and shift differentials are not included.
- Not including all performance bonuses and prizes (such as a $50 award for employee of the week) in an employee’s hourly rate.
What To Do Next?
It’s always advisable to begin by speaking with your employer if you suspect you are not being paid an overtime salary to which you are qualified. Demonstrate why you think you have a right to overtime pay. Give the employer a copy of whatever documentation you have.
If you are unable to persuade your boss that you are entitled to overtime, you have a few options. The majority of states have a system in place for filing a wage claim. To find out how to file a claim for unpaid wages, contact your state labor department. You’ll need to know the time constraints for filing a claim as well as the papers you’ll need to fill out.
There is no requirement that you use the state’s administrative process. You can also file a lawsuit without going through the state agency.
Nevertheless, before filing a wage claim or considering legal action, you should consult with an expert lawyer to ensure that you have a valid claim. A Personal Injury Lawyer at Siman Law Firm in Los Angeles can assist you in determining your odds of success, as well as the evidence you’ll need.
If your case appears to be solid, the lawyer may be willing to defend you in agency hearings or in a lawsuit. If a group of employees has been committed to the same overtime policies, a class-action lawsuit could be filed in which you all band together to protect your rights.