Frequently Asked Questions About Wage: Overtime
If you have questions about whether your overtime is being correctly applied, or when you should be getting overtime, it’s important to talk to an attorney. Here are a few of the most common issues we find at The Spitz Law Firm, LLC:
I was told that it is too expensive to hire an attorney to pursue overtime claims. Is it worth it to pursue an overtime pay claim?
Wage: Overtime Attorney: At The Spitz Law Firm, we do not charge our clients anything upfront for overtime claims. Moreover, the FLSA provides that employers that have failed pay overtime wages are liable to pay the employees’ attorneys’ fees should the employee prevail at trial. If our wage and hour attorneys do not recover for you, you don’t pay us at all.
Can my boss avoid paying me overtime by getting me to sign a “flat” salary or pay agreement?
Wage: Overtime Attorney: Your employer may try to pay you a “flat salary” no matter how many overtime hours you work. Just because your job puts you on a “salary” does not automatically allow the employer to avoid paying overtime wages for hours worked over 40 hours per workweek. This trick should not apply if you are not really involved in actual management, supervision or decision making for the business and making at least $455 per week, or otherwise fit into one of the overtime wage exemptions described above.
Do I get overtime pay if my boss tells me that I am an independent contractor? Can I be called an independent contractor just to avoid paying me overtime?
Wage: Overtime Attorney: One of the most common tricks that employers use to save money by avoid paying both overtime wages and federal taxes is to label their employees “independent contractors.” A contract that states a worker is an independent contractor does not actually mean this relationship is created under Ohio law. Millions of employees are wrongly classified under this term, but they do not understand how it affects how much they are paid.
Because this it is not an easily resolved issue, the best way to beat this trick is to contact a wage and hour attorney, but you are likely not really an independent contractor and thus, entitled to overtime if any of the following apply to you: (1) your employer has the right to control how the work is done; (2) your employer has the right to control when the work is done; (3) your employer has the right to control where the work is done; (4) you are paid hourly instead of a flat fee; (5) you work only for the one employer; (6) you do not advertise your services for hire; or (7) your employer owns the equipment and tools used.
Who is responsible for keeping my hours worked? Do I need to have a record of my hours in order to win an overtime lawsuit?
Wage: Overtime Attorney: No. Your manager may tell you that you cannot win an overtime claim because there are no records of how much time you worked. False! In reality, the company that you work for is obligated to keep track of all the time worked and the lack of such records actually makes overtime claims easier for the employee, who can establish the hours worked through testimony based solely on recollection. Of course, if you have kept track of your hours worked that would be the best and you should bring those hours with you to meet our wage and hour attorneys.
I was told by my supervisor to stay late, but did not get pre-approved written permission to work overtime from HR. Can my job avoid paying overtime because there is no prior written approval?
Wage: Overtime Attorney: Your employer may try to convince you that you are not entitled to be paid for overtime hours because you failed to properly fill out paperwork or did not get advanced permission in writing or otherwise. But, if anyone in management for your company, such as manager, supervisor or boss, knew or even just has reason to believe that you are working overtime, the law requires that you get paid at time and a half.
Can my job avoid paying me overtime by giving me the title of manager even though I don’t really manage anyone?
Wage: Overtime Attorney: Your boss may try to tell you that you are not entitled to overtime because you have been given the title of manager, assistant manager, supervisor, or similar title. But, simply slapping a managerial title on your job does not preclude you from getting paid overtime, even if the title came with a raise.
Instead, your wage and hour attorney will look to see if you actually have any real authority to manage, direct, or control other employees, and if so, how many; if you get to make real business decisions; if you have real input to the operation of the business; if you have direct authority to hire or fire other employees; and several other considerations. If you don’t, the chances are that you are only a manager in title and should be paid overtime whenever you work more than 40 hours in any given week.
Should the tasks that I have to do before clocking in count toward overtime pay? Am I supposed to be paid for activities that my boss says that I have to do before I can even start my job?
Wage: Overtime Attorney: Yes. Your manager or supervisor may tell you that you have to perform pre-work tasks before “starting” your workday, such as donning protective gear, booting a computer in order to clock in, participating in roll call, or travel from the shop to a job site. This is work and you are entitled to be paid for it as a matter of law. In fact, if you were already working 40 hours per week, you are entitled to overtime wages at time and a half for all of this pre-punch in time worked.
Should I be paid overtime pay for the time that I worked off the clock?
Wage: Overtime Attorney: The best answer is that there should never be any time worked off the clock. It is against the law for your boss, supervisor, or manager to require you to clock out at the time you are scheduled to finish your workday, but continue working “off the clock” to finish your work, remove protective gear, travel back with other employees to the main location, return or clean tools and/or equipment or do a few extra work-related tasks. Your employer may attempt to convince you that working these overtime hours is only required because “you should have been able to complete the job during regular working hours.” This is a lie and does not stand up in court. Again, you are entitled to be paid for this work, and if you were already working 40 hours per week, you are entitled to overtime wages at time and a half.
Should I be paid overtime for work that I do outside the office beyond my normal 40 hour work week? Am I supposed to be paid when I do work at home?
Wage: Overtime Attorney: If you spend time doing work at home – which may include organizing records; finalizing presentations; reviewing or editing reports; conducting online research; being sent on errands to get materials for work the next day, or even responding to emails from customers or your boss – you are entitled to be paid for this work. If this work pushes you past a 40 hour work week, you should be paid time and a half for all hours over 40.
Should I be paid overtime if I have to eat lunch at my desk and still work 40 hours on top of that? Can my company automatically deduct an hour for lunch if I have to eat at my desk or stay by the phone?
Wage: Overtime Attorney: Has your employer told you that you have to (or even just allows you to) eat lunch at your desk so that you can answer phones, review documents or do other work, but still deducts a lunch break from your paycheck? Many employers and companies have a policy that will automatically deduct time for lunch from a paycheck even if the employee cannot leave for lunch. This is illegal.
If you are not completely free of your job responsibilities, you must be paid for that time. If your boss won’t let you leave the building or go out for lunch, you are likely entitled to be paid for that time. And, once again, if working during your lunch pushes you past working more than 40 hours for the week, that overtime pay should be calculated at time and a half your normal pay rate.
Can my boss have me work 50 hours one week to make up lost time from the week before without paying me overtime? Can my company base overtime on a two week period?
Wage: Overtime Attorney: Your boss may try to average two or more workweeks to avoid the overtime threshold. For example, your employer may try to combine 50 hours that you worked one week with the 30 hours worked the next to create an average of 40 hours per week in order to avoid paying your overtime wages. But, this too is an illegal overtime trick.
Under this example, you should be paid 10 overtime hours for the first week and regular wages for the remaining time. Our wage theft lawyers see this a lot with workers whose schedules are dependent on weather conditions. A washout on Thursday and Friday does not mean that your job can make you work overtime on Monday and Tuesday without paying you time and a half for all hours that you go over 40 hours in each week. The risk of bad weather or other delays is on the company, not you.
My boss gave me a gift card for working extra during the busy season but did not pay me overtime – is that legal?
Wage: Overtime Attorney: Your employer may try to pay you a periodical bonus or give you a gift or something extra as thanks for working overtime. While a little extra bonus or token of appreciation is nice, you are still entitled to be paid time and a half for each hour worked over 40 in a single workweek (and would not have to give back the bonus).
Instead of paying me overtime, my boss gave me comp time to take off later. Can my company give me extra vacation time instead of paying me overtime pay?
Wage: Overtime Attorney: Non-government employers may try, but they cannot give you “comp time,” extra vacation time, or more paid time off instead of overtime pay. For example, non-government nursing homes cannot set up a system that pays a nurse straight time for extra shifts picked up over 40 hours by giving them extra time off the following week or some later time. It becomes even more of a problem when your boss makes it difficult to use the promised comp time, which results in a full loss of pay.
My job does not pay me to travel from the shop to the job site – is this legal? Should I be paid when my job drives me to worksites or between worksites?
Wage: Overtime Attorney: While you are not entitled to be paid driving between home and your fixed-job location, your employer may try to convince you that you are never entitled to be paid while traveling from job site to job site; your fixed-job site to a different job site; or for overnight travel. If this travel time results in you working over 40 hours for any given week, you are likely entitled to overtime pay.
Can I be required to skip lunch or come in during off-hours for meetings without being paid? Should I be paid for non-voluntary training sessions?
Wage: Overtime Attorney: Has your employer required you to attend work-related meetings and/or training sessions that are held at times that you are not scheduled to work, but not allow you to punch in for these events? Your supervisor, boss, or manager may tell you that this is a prerequisite for continuing to be an employee or mandatory training that you need to do your job, but neither of these reasons, even if true, allows your employer not to pay you for showing up for these meetings or training sessions. In fact, this overtime trick is illegal and you are entitled to your wages for all work-related activities and overtime if these meetings are in addition to your regular 40-hour workweek.
Should I be paid overtime pay for my on-call hours? When should I be paid for my time if I am not working but am on-call?
Wage: Overtime Attorney: Your employer may try to have you on a restrictive “on-call” schedule that prevents you from engaging in certain activities or leaving a certain geographical area, but not pay you for your “on-call” hours. Depending on a variety of factors that your wage and hour attorney can discuss with you, you may be able to be paid for all “on-call” hours, including time and a half for all overtime hours.
My boss said that because my employment contract says he doesn’t have to pay overtime that I have to work at my regular rate as many hours as he assigns me – can he do that? Can my company make me sign a contract that says that I will not be paid overtime?
Wage: Overtime Attorney: No. The minimum standards in the FLSA cannot be contracted away, waived, or otherwise reduced. This means that a paragraph that is snuck into an employment contract or employee handbook cannot be used to block your right to be paid overtime. Even collective bargaining agreements cannot contract away, waive or otherwise reduce FLSA protections. If there is such a provision in any contract or union agreement, you should simply ignore it because it cannot be legally enforced by your company.
What can I do if my boss tells me that he can find laborers that will work as many hours as he wants without getting overtime pay? As a blue-collar worker, can I be exempt from overtime pay?
Wage: Overtime Attorney: No. Never. The overtime exemptions provided by FLSA never apply to blue-collar workers, but only to “white collar” employees. The exemptions discussed more below never can be applied to deny overtime pay to manual laborers that perform work involving physical skill, repetitive hands operations, and energy. So non-management blue-collar workers that are employed in construction, production, and maintenance are always entitled and can never be denied overtime pay at time and half. This is true no matter how highly paid a blue-collar worker might be. This applies to plumbers, craftsmen, construction workers, carpenters, electricians, mechanics, ironworkers, and laborers, among others.
Do I fall under the Executive Exemption for the purposed of overtime wages? If I’m given an executive title but no executive duties, should I be paid overtime at time and half?
Wage: Overtime Attorney: In order for you to fall within the Executive Employee Overtime Exemption, your employer would have to prove all of the following: (1) you be paid a salary (as opposed to hourly) at a rate of not less than $455 per week; (2) your primary work duty must be managing the business as a whole, or managing a customarily recognized department or subdivision of the business; (3) you must customarily and regularly direct two or more other full-time employees’ work; and (4) you must have the independent ability to hire or fire other employees, or at the very least, your recommendations on hirings, firings, and promotions must be given significant weight by your company.
If you do not meet all of the Executive Exemption requirements – say you only direct one employee or you have no ability or input into hiring or firing – you are entitled to be paid overtime at time and a half your weekly salary plus bonuses divided by 40 hours.
Do I fall under the Administrative Exemption for the purposed of overtime wages?
Wage: Overtime Attorney: You would only fall within the Administrative Employee Overtime Exemption, if your company can show that all of the following criteria are met: (1) you must be paid on a salary or fee basis at a rate of at least $455 per week; (2) your primary duty must be performing office or non-manual work that is directly related to the management or general business operations of the company or its customers; and (3) your primary duty must allow you to exercise your own discretion and independent judgment on matters of significance, as opposed to trivial things such as selecting the type of pens to buy for the office. Again, if all of these criteria are not met, you do not fall under this exemption and would be entitled to overtime pay.
Do I fall under the Professional Exemption for the purposed of overtime wages?
Wage: Overtime Attorney: For you to qualify as exempt under the learned Professional Employee Overtime Exemption, your employer must show all of the following: (1) again, you must be paid at least $455 per week on a salary or fee basis; (2) your primary duty must be the performance of work that requires a level of advanced knowledge. This is further defined as work that is principally intellectual in character and requires your regular exercise of discretion and judgment; (3) your advanced knowledge must be in a field of science and/or learning; and (4) your advanced knowledge must be customarily “acquired by a prolonged course of specialized intellectual instruction,” or more directly, lots of college and advanced degrees.
Do I fall under the Creative Exemption for the purposed of overtime wages?
Wage: Overtime Attorney: If your employer want to place you under the Creative Professional Employee Overtime Exemption, it must prove that all of the following tests have been met: (1) as you may be noting is a common element, you must be paid a salary or fee of at least $455 per week; and (2) you must primarily perform work that requires invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.
Do I fall under the Computer Exemption for the purposed of overtime wages?
Wage: Overtime Attorney: To qualify for the Computer Employee Overtime Exemption, the following criteria must be shown by your employer: (1) you have to be paid a salary or fee of not less than $455 per week or, unlike other exemptions, you can be paid on an hourly basis at a rate of at least $27.63 an hour; (2) you must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing one of these duties: (a) application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications; (b) design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; (c) design, documentation, testing, creation or modification of computer programs related to machine operating systems; or (d) a combination of the aforementioned duties, the performance of which requires the same level of skills. So the tech guy that gets your mouse or monitor to work is not exempt simply because he or she is the computer gal or the tech guy.
Do I fall under the Outside Sales Exemption for the purposed of overtime wages?
Wage: Overtime Attorney: Unless you meet both of these criteria, you do not fall within the Outside Sales Overtime Exemption: (1) your primary duty must be making sales, or acquiring orders or contracts for services or for the use of facilities be paid by a customer or client. In this regard, “Sales” is defined by the FLSA to mean any sale, exchange, contract to sell, consignment for sales, shipment for sale, or other disposition. It includes the transfer of title to tangible property, and in certain cases, of tangible and valuable evidences of intangible property.; and (2) you must be regularly and customarily working outside of your employer’s normal place(s) of operation.
Do I fall under the Highly Compensated Employees Exemption for the purposed of overtime wages?
Wage: Overtime Attorney: You will only be considered under this overtime exemption if you: (1) do office or non-manual work; (2) are paid total annual compensation of at least $100,000, of which $455 must be paid per week on a salary or fee basis; and (3) perform at least one of the duties of an exempt executive, administrative or professional employee as described above.
What does primary duty or primary work mean? How do I determine what my primary duty is?
Wage: Overtime Attorney: “Primary duty” is defined as the principal, main, major or most important duty that you perform on your job. A court will decide what you primary duty is based on all the facts in your particular case, with the significant focus on the nature of your job as a whole.
DISCLAIMER: These answers do not constitute legal advice or guidance.