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Can I Sue My Boss Individually For Not Paying Me For Overtime? I Need A Wage Lawyer!

On Behalf of | Jan 5, 2015 | Wage: Overtime |

Best Ohio Overtime Attorney Answer: I’m not being paid overtime at work; who can I sue? Does the FLSA allow for supervisor liability? Can I sue for overtime if I work for the state? Can I be denied overtime pay because my boss says I was inefficient and needed the time to catch up?

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You often work over 40 hour per week at your job. Up until now, your supervisor has always told you and despite working over 40 hours per week, “you do not qualify or overtime pay” or your are “exempt” from overtime pay. You have always been skeptical about your manager’s position so you consult an attorney. You learn that you should have been paid overtime for all hours you worked over 40 each week. You decide not only to sue your employer but also your supervisor personally, whom you feel has lied to you about your overtime rights. Any problem with suing your boss personally?

The Fair Labor Standards Act (“FLSA”) requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus time and one-half their regular hourly rates for hours worked beyond 40 per week. The FLSA provides that employers who violate the law are liable to the aggrieved employees for their back wages and an equal amount in liquidated damages, plus mandatory reasonable attorney’s fees and costs. Under the FLSA, the term “employer” includes “any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency.”

In Martin v. Wood, the Fourth Circuit Court of Appeals was faced with the question of whether Martin could state a claim for an FLSA violations against not only her employer, a hospital operated by the Commonwealth of Virginia in Williamsburg, but also her supervisors as well.

Who are the best wage and hour lawyers in Ohio? How do I get paid for overtime? To get a free initial consultation about your possible overtime claims at no cost to you, call attorney Brian Spitz and the wage and hour lawyers at Spitz, The Employee’s Law Firm now!

Laura Martin sued under the FLSA, claiming that regularly started working at least 20 minutes before her scheduled shift and continued working for a half hour to an hour and a half after the end of her scheduled shift. Laura also alleged that it was common for her to work through her lunch break. Despite this extra work time beyond 40 hours per week, Laura claimed that she was only paid for her scheduled 40 hours as opposed to the hours that she actually worked. According to her complaint, Laura complained to her direct boss, Milagros Jones, who Laura asserts refused to correct the pay issue and blamed Laura for inefficiency. (Note: the FLSA does not allow employers to avoid paying overtime by claiming that the added hours were necessitated by an employee’s inefficiency.) Laura’s complaint also alleges that he CEO and director of the hospital, Jack Wood, was apprised of the problem and refused to fix it. So when Laura sued, she sought damages from not only the hospital, but also Wood and Jones in their individual capacities.

However, Laura conceded that Eleventh Amendment provided the state run hospital sovereign immunity from damages claims under the FLSA. The Eleventh Amendment provides: “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.” Essentially, this means that you cannot use a federal law to sue a state or a state run agency. Because the hospital fell squarely into this category, Laura’s only hope of recovery under the FLSA was against Wood and Jones.

After Martin filed a Complaint, the Wood and Jones filed a motion to dismiss, also claiming sovereign immunity from liability. Sovereign immunity is a legal doctrine that prevents a governmental entity or its employees from being sued in a civil action. The supervisors argued in their motion that “their conduct, as alleged, involved their official duties on behalf of the hospital, such that the complaint was, in reality, directed against the hospital, which has sovereign immunity.” Previously, the district court denied the motion to dismiss, finding that the supervisors had been sued in their “individual capacities” and thus, there was no immunity issue. The Court of Appeals disagreed and reversed.

Specifically, the Court held that the real party in interest was the Commonwealth of Virginia because the hospital in question was a “state” operated hospital. The Court then held, “Since the Eleventh Amendment has withdrawn jurisdiction over suits of this nature against the States, effectively giving the Commonwealth immunity, we reverse and remand with instructions to dismiss the complaint.”

The key here is that Martin did not successfully convince the Court that the supervisors were sued in their individual capacity or that their actions, as alleged in the Complaint, amounted to conduct that was not “tied inextricably to their official duties” and instead taken for purposes of personal interest. Simply put, the Court held that the supervisors acted purely within the course and scope of their employment at the hospital and thus, they were entitled to the same sovereign immunity as the hospital under the Eleventh Amendment.

The ruling in the Martin case could be viewed in different ways. While the holding did limit supervisor liability in this particular case, the holding is very narrowly tailored to the specific case where the employer in question was a “state” entity, and thus the “real party in interest” was the state itself, therefore allowing for Eleventh Amendment immunity to apply. Thus, the holding should not be read to somehow limit supervisor liability as it applies to private employers. Rather, without similar constitutional or statutory immunity protection, private employers are left with the language in the FLSA, which as currently written, supports individual supervisor liability.

Does this mean that employees that work for the state have no recourse? Not necessarily. Just because federal laws do not apply to state run agencies does not mean that it is the end of the. Instead, good wage and hour lawyers know that there are state laws that may also apply. For example, in Ohio, R.C. § 124.18(A) provides: “Forty hours shall be the standard work week for all employees whose salary or wage is paid in whole or in part by the state or by any state-supported college or university. When any employee whose salary or wage is paid in whole or in part by the state or by any state-supported college or university is required by an authorized administrative authority to be in an active pay status more than forty hours in any calendar week, the employee shall be compensated for such time over forty hours, except as otherwise provided in this section, at one and one-half times the employee’s regular rate of pay.” Thus, state employees in Ohio have recourse for not being paid time and half for overtime hours, but the claim is not as easy to prove as it would be for a private employee under the FLSA and the same damages are not available. Even so, some claim is better than no claim.

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 or independent contractor, contact the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. The wage and hour lawyers at Spitz, The Employee’s 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 866-797-6040.


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 Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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