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Is It Legal For A Company To Not Pay Overtime?

Best Ohio Overtime Pay Attorney Answer: Can I sue my employer for not paying me overtime? Is it a problem if I work different hours every week but my pay is always the same? I’m an hourly employee but I never get paid overtime, what can I do? Is my boss breaking the law by not paying overtime? Can a company not pay you for overtime? Does my job have to give me a lunch break? Is It Legal For A Company To Not Pay Overtime?

I love food. Who doesn’t? I’m
not a picky eater by any means, and I love to try new dishes and go to new
restaurants. Although it is concerning when a particular restaurant serves their
dishes at almost unbelievably low prices. What is wrong with it? Is the food
bad? Is there something defective about the dishes? As an employment
attorney
one of the first things that comes
to my mind is that the employees may be paid incredibly low wages. Or, in some
cases, the restaurant may be violating Fair Labor Standards Act (“FLSA”). The
FLSA is a federal law that requires employers to pay employees a minimum wage
per hour and overtime pay at time and a half. The pessimist in me knows that a
quick way for employers to “cut costs” and keep food prices down is to short
employees. Unfortunately, it is more common than people may think.

There are some tell-tale signs
of when an employer violates FLSA. How do employers avoid paying overtime? A
recent case out of New York pretty much sums up all of the red flags that
employees need to be on the look-out for.

Former employees Jose Luis
Basurto and Hugo Neri de Jesus, filed in the United
States District Court for the Southern District of New York
to start a
collective action against a popular New York Thai restaurant, Larb Ubol. Jose
and Hugo alleged in their Complaint that they both regularly worked over 40
hours a week, but were never paid overtime, and at times, they weren’t even
making minimum
wage
. Jose and Hugo also alleged that their managers never kept accurate
records of how many hours they worked, repeatedly failed to pay them on a
regular consistent schedule.

Jose started working at the famous Thai Restaurant, Larb Ubol, in September 2014. Hugo started working at Larb Ubol in February 2018. Jose was a cook and salad preparer. Jose estimated that during a typical work week he worked roughly 72 hours per week. At times, he would only work 66 hours but usually, it was closer to 72 hours per week. The entire time that Jose worked at Larb Ubol, he was paid in cash. No matter how much or little Jose worked, he was always paid the same fixed amount.

Is It Legal For A Company To Not Pay Overtime?
Larb Ubol was known for their critically loved Isan Dishes from Northern Thailand.

In 2014 and 2015, he was paid
$530 per week. Let’s break down this math a little bit. If Larb Ubol had
calculated Jose’s wages based on 40 hours per week, the hourly rate would have
been $13.25. This seems fair and reflects what the employee was promised. But,
if the employee is getting the same $530 to work 66 hours, the rate drops to
$8.03 per hour. And, that same $530 per week for 72 hours calculates to only $7.36.
This is the problem with flat weekly pay amounts.

Now, if use the $13.25 rate for
the first 40 hours and then factor in the overtime rate at time and a half for
the overtime hours he worked beyond that, that puts him at $636 in just
overtime alone: 32 (overtime hours) x 1.5 (time and half) x $13.25 (hourly rate)
= $636. Had Jose been paid fairly and given overtime he would have brought home
$530 (regular pay for first 40 hours) + $636 (overtime pay at time and half) =
$1,166. That’s a big difference, considering it would have not only doubled his
take home income, but it happened over the course of many years. In 2014, Jose
should have been making $60,632, but because he was never paid over time, he
only took home roughly $27,560.

In 2016, he got a raise and was
paid $590 per week. The same math applies here. At $590 per week, Jose was earning
roughly $14.75 an hour. If he was paid the appropriate overtime that he was
entitled to he would have taken home $708 additional dollars per week. That
means that if he was paid in a legal way, he should have taken home $1,298 per
week instead of $590. In 2016 Jose brought home around $30,680 when he should
have banked $67,496. Imagine all of the things Jose could have done with that money.
That is the difference between struggling to feed a family and living a much
less stressful lifestyle.

In 2017, he was paid $750 per
week. At this point it almost seems repetitive, but our wage and
hour attorneys
understand that these
number paint a very important picture. At $750 per week Jose was earning roughly
$18.75 per hour. If his overtime was paid correctly, he would take home an
additional $900. So, he should have earned $1,650 per week instead of the $750
and $85,800 per year instead of $39,000.

And in 2018, Jose made $900 a
week. That means he was paid $46,800 instead of the $102,960 that he was
legally entitled to.

Jose was not alone, according
to the Complaint, which reported that this was a common practice at Larb Ubol. Let’s
just say for example that the same $60,000 underpayment was done on average to
20 employees; this means that the company saved and extra $1.2 million per
year. Of course, the employer could have simply been smarter and hired more
employees so that overtime was never necessary.

Okay, so that was problem
number one. Onto the next FLSA issue.

Before January 2017, Jose was
not allowed to take any breaks or meal periods of any kind. It’s important to
note that in Ohio and under federal law, employers are generally not required
to ensure that employees get breaks or meal breaks. (See Does
My Employer Have To Give Me A Lunch Break?
; Can
My Employer Force Me To Work Through My Lunch Break?
; Should
I Be Paid If I Need To Work Through My Lunch Breaks?
).

When Jose first started working
at Larb Ubol, he was not required to keep track of his time. It was not until
January 2016 that he had to start tracking his hours. But there was a catch,
Jose was not allowed to keep record of all of the hours that he actually
worked. This meant that he was not getting compensated for all of the hours
that he worked.

Things weren’t much better for
Hugo. Hugo started in February 2018. Hugo did not typically work as many hours
as Jose, but he worked there for a less amount of time. According to the
Complaint, Hugo usually averaged around 51 hours per week. Hugo was also paid
in cash. The entire time Hugo worked there, he made $700 a week in cash.
Unfortunately, Hugo was also never paid extra when he had to stay longer to
work. When Hugo worked there, Larb Ubol never made him keep track of his time.

According to their complaint,
Hugo, Jose and other employees for the restaurant were constantly required to
stay past their scheduled shifts and were never given additional money for the
extra time. As if that was not bad enough, it gets even more sketchy. At
different points in their careers, employees of Larb Ubol were required to sign
blank documents, which they were not allowed to review, in order to be paid.
The documents they had to sign did not reflect the hours they worked, they only
had their names, number of days worked, and the amount paid. Honestly, at this
point, one has to wonder whether they were trying to make it obvious that the
restaurant was breaking FLSA. The action of making employees sign blank
documents in order to be paid, in cash, seems like a pretty cut and dry
violation of wage laws, and worse off, an intentional violation. There’s pretty
much no other reason to do this, unless the boss is intentionally and knowingly
violating labor laws. Why else would they be trying so hard not to leave a
paper trail?

Is It Legal For A Company To Not Pay Overtime?

Jose and Hugo filed a lawsuit
against Larb Ubol on June 13, 2018. In September 2019, the owners of Larb Ubol
agreed to settle the claim with Jose, Hugo and the other class members for $3.7
million. That money will be divided between all of the class members according
to how long they worked there, how much overtime they are owed and what their
weekly pay rate was. I suspect that Jose will walk away from this settlement
with a hefty sum.

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 The Spitz Law Firm today for a free and confidential
initial consultation. 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 our Cleveland
attorneys at (216) 291-4744. Call our Columbus attorneys
at (614) 335-4685. Call our Cincinnati
attorneys at (513) 818-3688. Call our Toledo
attorneys at (419) 960-5926.

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 staying late”, “My paycheck is short” or “What do I do if my company does not pay overtime”, 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.