Ensuring You Are Fairly Compensated for Your Labor
As an employee, you have certain rights that your employer may not inform you of. That includes the laws surrounding overtime and how compensation should be handled if you work more than a certain number of hours. At Barrett & Farahany, we have protected the rights of many people within our community, and we may be able to help you too. If you feel you are being taken advantage of by your employer, our team of highly skilled overtime lawyers in Atlanta are prepared to fight on your behalf.
The first step in determining who should be receiving overtime pay is identifying whether they are an exempt or nonexempt employee. Employers will usually tell employees that if they are paid a salary, then they are exempt from being paid overtime if they work more than 40 hours a week. In truth, they must perform the duties of a truly exempt employee such as an executive, professional, or administrator. If you are considered nonexempt, under most circumstances you should receive overtime pay if you work more than 40 hours a week.
When an employee is legally eligible for overtime, they are supposed to be paid at a rate of one and a half of their hourly wage. For example, if you make $20 an hour, for each hour of overtime you should earn $30. There are exceptions to this, which one of our skilled attorneys can help you to identify.
Independent Contractors vs. Employees
Many employers will evade paying overtime by classifying their workers as “independent contractors” when in reality, they are nonexempt employees. When you work with a skilled legal professional, he or she can determine if in fact you are actually an employee and not an independent contractor.
Some of the criteria that our legal team will examine include the following:
- How much the employer has control over the worker in terms of how they perform their job, when they work, how they dress, etc.
- How much of an opportunity the worker has to gain income or lose it as determined by the employer.
- How permanent the relationship is between the worker and the employer. Contract workers have a specific date by which their contract will end, and though the contract can be extended, it is not the same as hiring a permanent employee.
Frequently Asked Questions
Who is owed overtime pay?
Although there are exceptions, non-exempt employees are usually owed overtime pay. If you are paid by the hour for the work that you do, and you are working more than 40 hours every week, you are likely a non-exempt employee and may very well be entitled to overtime pay.
How much should I be paid for my overtime hours?
Overtime is calculated based on a 40-hour work week, and the rate of pay for overtime hours (i.e., hours worked over 40) is typically 1.5 times an employee's hourly rate. Keep in mind that your overtime pay rate may be more than 1.5 times your hourly rate if you receive bonuses, commissions, or other compensation in addition to your hourly wage.
How much overtime pay can I claim?
The Fair Labor Standards Act (FLSA) allows you to recapture of up to 2 years of overtime pay. In limited circumstances, you may be able to reach back as far as 3 years to reclaim overtime pay that is owed to you. In many overtime cases, double damages (i.e., twice the amount that is technically owed to you for the overtime hours you worked) may be available, as well as attorney fees.
How do I know if I am entitled to overtime pay?
In determining whether you are owed overtime, how you are currently paid and your title at work are not necessarily conclusive. Although certain job positions may almost always be non-exempt and entitled to overtime pay (e.g., most hourly positions, phone sales, administrative assistant positions, most paralegal positions), whether you are exempt or not is largely dependent on the actual duties you perform at your job every day.
If you are an hourly employee, your employer may owe you overtime pay if:
- You are working more than 40 hours each week but are paid the same amount of money weekly no matter how many hours you work;
- You are working more than 40 hours each week but you are not being paid 1.5 times your hourly rate for the hours you work beyond 40;
- Your employer does not document or pay you for the hours he/she asks you to come in early, stay late, or work through lunch;
- Your employer asks you to do any kind of work that is unpaid or “off the clock.”
Are salaried employees always exempt from overtime?
Just as there are certain positions that are almost always non-exempt and entitled to overtime, there are also certain positions that are almost always exempt from overtime pay (e.g., CDL licensed drivers who travel across interstate lines, certain outside sales positions, highly compensated positions, or salaried managerial positions with true managerial duties).
Remember, however, that titles, such as “manager” or “supervisor,” or labels, such as “exempt,” do not necessarily determine whether you are owed overtime. In many cases, titles and labels are applied for the very purpose of avoiding paying overtime to non-exempt employees. Therefore, even if you are a salaried employee making the same amount of pay each week, you may be misclassified and entitled to overtime if your job duties are duties normally performed by non-exempt employees.
For example, if you have a managerial title and you are working more than 40 hours each week, you may still be owed overtime pay if you do not truly supervise 2 or more employees, if you perform the same work as the employees you supervise, or if you cannot hire, fire or make other managerial decisions. Additionally, even if you actually perform genuine managerial and supervisory duties, you may still be non-exempt and owed overtime pay if you are paid by the hour rather than salaried.
There are numerous exemptions and exceptions to the FLSA laws about overtime, but an Atlanta overtime attorney at Barrett & Farahany can help you determine if you are properly classified and if you are entitled to overtime pay.
What if I get fired for asking about overtime?
FLSA makes it illegal for your employer to fire you in retaliation for asking about overtime pay or for consulting an attorney to help with your overtime claim (and this is true even if it turns out that you are properly classified and NOT entitled to overtime pay). If you think you may be owed overtime pay or if you have been terminated for asking questions about overtime pay, our team may be able to help.
Get the Justice You Deserve
If you have been cheated of overtime, we may be able to recover the wages you should have earned at the time as well as court costs, attorneys' fees, and interest.