Under the federal Fair Labor Standards Act (FLSA), most employers are required to pay non-exempt employees 150% of their regular hourly wage, also known as “time and a half,” when they work more than 40 hours in one workweek. Unfortunately, many eligible employees do not receive the overtime pay they are entitled to. Employers often find ways to avoid paying overtime in violation of the FLSA. If you believe your employer owes you unpaid overtime, you need to speak with an experienced attorney to understand your rights and options.
The attorneys of Barrett & Farahany have extensive experience representing employees in unpaid overtime and minimum wage violation actions. We work closely with clients to thoroughly analyze their cases and determine the best legal path forward to obtain appropriate relief.
Employees are categorized as “exempt” and “non-exempt” to receive overtime pay. Exempt employees are those who do not have to be paid overtime pay. The Fair Labor Standards Act requires most employers to pay overtime to non-exempt employees based on a weekly overtime standard, rather than a daily standard. This means overtime is to be paid when a non-exempt employee exceeds 40 hours in a given workweek. Alabama and Georgia do not have their own overtime laws, however, so employers must follow FLSA standards.
The vast majority of employers are covered by the Fair Labor Standards Act. This includes businesses with annual revenues exceeding $500,000 and businesses whose revenues do not exceed that figure but participate in interstate commerce. Most businesses conduct some form of interstate commerce, including activities such as calling to another state, sending mail to another state, and sending goods to or receiving goods from another state meet the definition of interstate commerce.
Non-exempt employees of businesses covered by the FLSA must receive overtime pay, and failure to do so is an overtime violation. Several types of workers are considered exempt employees. This includes:
These are executive, administrative, or professional employees who receive a salary of at least $455 per week. Exempt employees in this category must spend most of their time performing tasks that require independent judgment and discretion.
These are employees who work away from the main business location regularly selling and/or taking orders to sell goods and services.
This includes workers who qualify as subcontractors and are not technically employees of the business.
These are programmers, software engineers, systems analysts, and similarly skilled computer workers. To qualify as an exempt computer specialist, the employee must earn at least $27.63 per hour.
These are employees of seasonal businesses such as amusement parks, ski resorts, and county fairs, as well as employees of non-profit or religious camps or educational centers that operate for less than seven months out of the year.
These are employees of certain small newspapers, as well as newspaper delivery people.
This includes seamen, fishermen, small farm employees, criminal investigators, certain switchboard operators, babysitters, and workers that provide companionship and other non-medical assistance to those who are unable to care for themselves.
Employers often use creative methods to avoid paying the required overtime to non-exempt employees and commit wage theft. Some of the most common overtime violations include:
One way employers frequently get out of paying overtime is to incorrectly classify a non-exempt worker as exempt. For example, classifying an employee as a manager, supervisor, or executive when their job duties are essentially the same as those they are supposedly “supervising” and/or their jobs do not require independent judgment and discretion. Another common misclassification is to classify someone who should be an employee as an independent contractor.
Another way for employers to avoid paying required overtime is to have employees work “off the clock” to stay under 40 hours in a given workweek. There are many ways this occurs, including requiring employees to work through unpaid meals or breaks, not paying employees for travel time during work, not paying employees for mandatory training and other required activities, or just flat-out expecting employees to do extra work after they have clocked out and from home.
Non-exempt employees are supposed to receive 150% of their regular hourly rate when they exceed 40 hours in a week. However, an overtime violation may occur when an employer does not include all the required compensation in calculating that hourly rate. For example, an employer may decide to exclude performance-based bonuses, commissions, and shift differentials in the overtime pay.
If you believe your employer has committed an overtime violation by not paying you the compensation you are entitled to, you have legal options. Additionally, if an employer harassed or wrongfully terminated you for asking for the pay you are entitled to, you may have a right to sue your employer for retaliation.
If you are considering legal action against your employer for overtime violations, it is important to speak with an attorney sooner rather than later. Barrett & Farahany understands the federal wage and overtime rules and will discuss your options with you to decide the right course of action.
Contact us today to schedule a consultation.
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