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Most But Not All Employees Are Entitled To Overtime

by | May 31, 2023 | Wage: Minimum Wage, Wage: Overtime |

The Fair Labor Standards Act (“FLSA”) and the Ohio Minimum Fair Wage Standards Act (“OMFWSA”) are important laws that protect workers’ right to be paid premium compensation (time and one-half) for overtime work. However, not all employees are covered by these laws.

Section 34a, Article II of the Ohio Constitution provides that all employees, no matter what, are entitled to be paid at least the federal minimum wage, currently $7.25 per hour. From there, the obligations of the employer increase based on their annual “gross receipts” – in other words, their annual income before any overhead or deductions.

As of the date of this blog, under Ohio law employers whose gross income equals or exceeds $150,000.00 per year must pay overtime, and employers who gross $372,000.00 per year must pay the Ohio minimum wage, currently $10.10 per hour.

The FLSA is less broad, and at the same time more complicated. Under the FLSA, an employer is only required to pay minimum wage and overtime if (1) they are an “enterprise” under the FLSA, (2) they are a “named enterprise,” or (3) the employee can prove that they are subject to “individual coverage.”

For an employer to qualify as an “enterprise” under the FLSA, they must have $500,000.00 in gross receipts and there must be some evidence that they participate in “commerce” or produce goods for commerce. “Commerce” broadly refers to business activities that cross state lines. This can include transporting goods or people across state lines, conducting business transactions using interstate communication methods like phones or the internet, or producing goods that are intended to be sold in other states.

An employer is a “named enterprise” if it is included in a list of businesses under the FLSA that are automatically covered. Generally, this includes hospitals, residential medical or nursing care facilities, schools, preschools, and government agencies.

Finally, there is individual coverage. Individual coverage applies when an employee regularly and directly participates in the movement of persons or things in interstate commerce as part of their job duties. This differs from enterprise coverage, which applies when an employee works for an enterprise engaged in commerce or the production of goods for commerce, even when a given employee does not perform these duties themselves. For example, if the employee makes phone calls out of state as part of their job, even if the employer does not sell things or purchase things out of state, they will be individually covered.

Recently, in Kebin Valentin et al v. 1245, LLC, et al, the Eleventh Circuit Court of Appeals provided a great example of this concept in practice, finding that a Florida-based employee’s testimony that he had called employees located at the employer’s New York headquarters “several times” was sufficient to overcome the employer’s motion for summary judgment, which had supported with testimony that such calls only occurred on “isolated occasions. Why neither side supported their arguments with phone records – which would seem to be dispositive – is unclear.

It was not a total loss for the employer, however. Citing the fact that two of the three employees had admitted to not making or participating in the New York phone calls, the court found that the trial court had properly dismissed their claims because they were not covered by the FLSA.

At the end of the day, if you do anything involving interstate commerce in your job – making or receiving out-of-state phone calls, sending mail out of state, swiping customer credit cards from out-of-state banks, ordering office supplies from the internet, you are entitled to overtime. And, even if your job duties require you to do any of these things, chances are you are still covered under the OMFWSA.

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What should I do if my employer is not paying me overtime pay?

While coverage under the FLSA and the OMFWSA is broad, it is not universal, and thus it is important to make sure to hire an experienced wage and hour attorney to help you understand your options under the law. Further, if you have been denied overtime pay, you may be entitled to recover back pay, liquidated damages, and attorney’s fees, which gives you a bargaining token to force an employer to pay you what you are owed quickly, rather than dragging things out in hopes that you just give up.

If you believe that you have been denied overtime pay, it would be best to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?Why Having Skilled Employment Attorneys Is CriticalEmployment Law: Avoid Hiring The Wrong Attorney). Call our lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.


This employment law website is an advertisement. The minimum wage and overtime materials available at the top of this page and at this employee’s rights website are for informational purposes only and not for the purpose of providing legal advice. Before you take any legal action against your employer,  it would be best for you to contact our top attorneys to obtain advice with respect to any particular employment law issue or problem. 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 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.

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