Top Wage And Hour Attorneys Reply: Can I be paid a flat rate if it means that I am making less than minimum wage? At what rate am I supposed to be paid overtime when I work over 40 hours per week if I’m paid a daily rate instead of hourly? If I didn’t keep track of my time, can I still file a wage theft claim against my employer?
We all know someone. You know that one person that thinks he or she is just so much smarter than everyone else. Whatever you say, that person knows better. Whatever the rules say, there is away around them. This person just knows ever angle there is to cheat the system and get what he or she wants. When I deal with this people, I always think of Vizzini, The Sicilian in The Princess Bride – a classic 1987 movie that has stood the test of time.
Westley: you’re that smart?
Vizzini: Let me put it this way, have you ever heard of Plato, Aristotle, Socrates?
Unfortunately, a lot of these self-proclaimed geniuses become employers. Maybe this person is your boss, manager, supervisor, or event he owner of the company where you work.
So, let’s just start with a basic premise that a large number of mega-braniac employers will do anything that they can to reduce the amount that they have to pay their employees – especially the blue collar and working class. Overtime and minimum wage laws be damned. Our wage and hour lawyers have blogged before about many of the tricks that smarty-pants employers will use to screw hard working employees out of money that is rightfully theirs. (see What Can I Do About Wage Theft Violations?; Overtime Trick: What Should I Do If My Boss Says I Work For Two Companies?).
Federal wage laws are found in the Fair Labor Standards Act (“FLSA”) while Ohio provides its own wage laws. These laws control the requirements for both overtime pay and minimum wage. Obviously, the minimum wage portion of the law sets the lowest amount that an employer must pay covered workers for each hour worked. (see What’s The Ohio Minimum Wage in 2019? | Spitz, The Employee’s Law Firm; Top Wage Lawyer: Is Everyone Entitled To Earn Minimum Wage?; How Much Is Ohio’s Minimum Wage In 2016?; Can Amusement Park Workers Be Paid Less Than Minimum Wage?; Can My Job Call Me A Volunteer And Not Pay Me?; and Should Outside Sales People Be Paid Minimum Wage?).
Additionally, the FLSA and Ohio’s R.C. § 4111.03(A) requires employers to pay covered employees time and a half the employee’s wage rate for all hours worked over 40 hours in a single work week. (See Should I Be Paid Overtime For Training At Work?; Can I Sue My Boss Individually For Not Paying Me For Overtime? I Need A Wage Lawyer!; If I Do Domestic Work, Can I Sue For Overtime Pay? I Need A Lawyer!; Are IT Employees Entitled To Be Paid Overtime At Time And A Half?; Should I Be Paid Overtime Even If I Have The Title Manger? Top Ohio Wage and Hour Lawyer Reply).
There are two measures of time that are relevant here: (1) the hour; and (2) the work week. A large number of these mega-mind employers’ tricks focus on trying to change what amounts of time are being looked at. For example, because certain non-exempt employees get paid every other week, some of these employers will try and argue that no overtime pay is owed where the worker does not exceed 80 hours during that two-week period – or a 40-hour week average. No, no, no. A week is seven days. The law works on actual hours worked in that week and not averages over multiple weeks.
Our most recent example comes from a brilliant gas station owner in New Jersey. For at least two years, this owner paid all his attendant workers at five gas stations on a flat monthly basis regardless of how many hours they worked. A month is neither an hour nor a work week. As you would probably guess, these workers were not working 25 hours per week as the owner wanted to squeeze as much money out of these employees as possible. No, these workers were routinely working well in excess of 40 hours per week. This caused two major problems for the gas station owner. First, when the amount paid per week was divided by the number of hours worked by these employees, the calculated hourly rate dropped below the federal minimum wage. See, just because a genius boss or manager does not pay employees on an hourly basis does not get them out of having to meet an hourly basis for non-exempt employees. This trick has been used before and attorneys and courts have amazing been able to use fifth grade math to calculate the effective hourly rate. Of course, the brilliant, outsmarting everyone owner did not think about the potential for “math” to be used to bust this wage theft trick.
The second problem was that by paying these non-exempt workers a flat rate, the employer did not pay time and half for the hours worked over 40 hours in each work week. You see, the owner thought because the employees agreed to a flat rate and needed the job, he could push them to upwards of 60 hours per week. Boooooo! Bad employer.
A lot of times when getting busted for this type of wage theft, these nimble and clever employers turn to the common refrain of, “well, yeah I was wrong, but you can’t prove your damages because you have no time records! Ha! So, there!” In fact, many a boss and manger will tell employees that it is there fault for failing to keep track of the time that they worked and that any attempt to collect back wages would therefore inevitably fail. Unfortunately, this tactic has scared or bullied many employees from pursing their claims – but these employees should always seek out a free initial consultation to find out from a wage and hour lawyer that they can trust. In reality, the truth of the matter is that the FLSA puts the burden on the employer to keep track of the time – not the employees. Our attorneys have blogged before about the employer’s obligation to pay for all time – even time that is not recorded or worked off the clock. (See I Work “Off-the-Clock” Hours For My Employer But Am Not Paid Overtime Compensation. I Need A Lawyer!; My Employer Is Not Paying Me For All Of The Time I Work. I Need A Lawyer!; Can I Be Fired For Refusing To Clock Out Before I’m Done Working? I Need A Lawyer!). So, in addition to the minimum wage and overtime violations, the gas station employer was also found in violation of the pay and time record-keeping requirement.
In the end, the employer was found liable and required to pay $325,000 in back wages to 29 current and former employees. But, that is not all – the FLSA requires that an employer pay an equal amount in liquidated damages, which means that the employer is coughing up $650,000 – which does not even include attorneys’ fees, which the employer is also responsible for.
When awards like this hit employers like a ton of bricks, I just picture Vizzini standing that indignantly proclaiming, “Inconceivable!”
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 our office at 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 when I work off the clock”, “My paycheck is not right” or “What do I do if my job won’t pay me what I’m owed”, 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.