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Best Overtime Lawyer Answer: Should I Be Paid Overtime?

| Apr 3, 2014 | minimum wage violation, overtime time violation, tipped employee violations |

Top Overtime Attorney Answers: Am I covered by overtime laws? What is the difference between federal overtime laws and Ohio overtime laws? What can I recover if my employer has failed to comply with overtime laws? How do I find an overtime lawyer?

 Employment, Lawyer, attorney, law firm, Ohio, Cleveland, employer, employee, overtime, time and a half, wages, Fair Labor Standards Act, FLSA, wage and hour, independent contractor, misclassified, best, top, Ohio Fair Labor Standards Act, Brian Spitz, my job, my paycheck, I, pay, exempt, nonexempt, how do I, what do I doIt can often be very difficult to figure out when a given employee is entitled to overtime. The federal law that deals with overtime, the Fair Labor Standards Act (“FLSA”) covers most employees, but doesn’t cover everyone. And then, even if an employee is not covered by the FLSA, they might still be entitled to overtime by Ohio law. So how do you know if you are covered by overtime laws?

First, let’s look at the FLSA. There are two ways you can be covered – either the business as a whole can be covered (enterprise coverage) or you, as an individual, can be covered (individual coverage).

Enterprise coverage covers certain businesses who (1) have at least two employees and (2) who are engaged in interstate commerce; produce goods for interstate commerce; or handle, sell, or work on goods or materials that have been moved in or produced for interstate commerce, and (3) who have an annual dollar volume of sales or business done of at least $500,000, or (3) are a hospital, nursing home, school or preschool, or a government agency.

Brian Spitz, Cleveland, Ohio, Employment, Lawyer, attorney, law firm, employer, employee, overtime, time and a half, wages, Fair Labor Standards Act, FLSA, wage and hour, independent contractor, misclassified, best, top, Ohio Fair Labor Standards Act, my job, my paycheck, I, pay, exempt, nonexempt, how do I, what do I doHowever, even if your employer does not qualify for enterprise coverage, individual employees can still be covered in certain cases. In fact, it is possible for some employees within the same business to be entitled to individual coverage under the FLSA and for others not to be — and distinctions like “hourly” and “salary” have nothing to do with it. Stranger still, your entitlement to overtime under the FLSA can change from week to week, depending on what kind of work you do that week!

Now, let’s turn to individual coverage under the FLSA for overtime. To qualify for individual coverage, the employee simply has to either (1) engage in interstate commerce, (2) produce goods for interstate commerce or (3) be regularly involved in activities that are closely or directly related to interstate commerce.

The one thing you may have noticed is that “interstate commerce” seems to be pretty critical to eligibility under the FLSA, regardless of whether we are talking about enterprise coverage or individual coverage. But what exactly is “interstate commerce,” anyways?

Interstate commerce simply means goods or service travelling across state lines. The reason “interstate commerce” is so prominent in this area of law has to do with how the United States Constitution is structured. Congress can only enforce federal laws like the FLSA through its enumerated powers, which includes the “commerce clause.” Thus, for the FLSA to apply, the activity regulated must have some tie to commerce between the states. In our modern economy, that can be a fairly wide net. Certain examples are obvious are people who work in factories who manufacture goods to be sold around the country. But there are other activities that can be considered “closely and directly related” to interstate commerce that may not be so obvious:

  • Employees in telephone, telegraph, radio, television, and railroad jobs;
  • Employees who purchase or order goods from other states;
  • Employees who unload, unpack, check, or otherwise handle goods on receipt directly from outside the state;
  • Employees who maintain records of such interstate activities;
  • Employees who regularly travel across state lines in the performance of their duties;
  • Employees who regularly use instrumentalities of commerce, such as the telephone, the telegraph, and the mails for interstate communication; and
  • Employees who handle credit card transactions.

Thus, the FLSA covers a lot of employees, probably even most employees. However, there also many exemptions to coverage under the law, such as the executive exemption, administrative exemption, professional exemption, computer employee exemption, the outside sales exemption, and the highly compensated employee exemption.

So, if I am not covered by the FLSA, am I not entitled to overtime? Not necessarily. Ohio has its own overtime laws, which generally require businesses with gross annual sales of at least $150,000 to pay overtime to their employees. However, many of the exemptions described above can also limit an employee’s right to overtime under Ohio law as well. It also worth noting that there is some overlap here as an employee can potentially be covered by both the FLSA and Ohio’s overtime laws at the same time.

So what is the difference between the FLSA and Ohio’s overtime laws? The truth is, not much. Prior to 2006, the biggest difference was that under the FLSA, employees could receive “liquidated damage”, or double the amount actually owed, as damages, but only if the employee could show “bad faith”– that is, that the employer knew they were required to pay overtime but failed to do so. Ohio law only allowed the collection of back wages plus attorney’s fees.

However, everything changed in 2006, when Ohio voters voted to amend Section 34a of the Ohio constitution. Now, under Ohio’s wage and hour laws, prevailing employees are entitled to an additional two times the amount of back-wages, plus attorney’s fees and cost. More importantly, Ohio law does not require that the employer have acted in bad faith to qualify for the “two-times” damage award.

If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws or you are an nonexempt employee that has been misclassified as exempt, contact the attorneys at The Spitz Law Firm today for a free and confidential initial consultation. Or, maybe you are being misclassified as an independent contractor. The wage and hour lawyers at The Spitz Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call (216) 291-4744.

Disclaimer:

The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.