Birmingham, Alabama Overtime Violations Attorney
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 go over 40 hours in any one particular 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, it is important to speak with an experienced attorney, so you understand your rights and options.
Attorney Kira Fonteneau has been a strong advocate for the rights of employees in the workplace since 2005. Attorney Fonteneau has extensive experience representing employees in unpaid overtime and minimum wage violation actions. She works closely with clients to thoroughly analyze their case and determine the best legal path forward to obtain appropriate relief. In some cases, it may be possible to settle the case directly with the employer or through mediation. If the employer is unwilling to cooperate, however, she is ready and able to hold your employer fully accountable at trial.
Federal Overtime Rules
Employees are categorized as “exempt” and “non-exempt” for the purposes of receiving 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. However, if an employee exceeds 8 hours in a single day but the total hours for the week are still under 40, he/she is not eligible for overtime pay. A handful of states use the daily overtime standard. Alabama does not have its own overtime laws, however, so employers in the Yellowhammer State must follow FLSA standards.
Which Employees Must be Paid Overtime?
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” (i.e., they conduct business between states). Most businesses conduct some form of interstate commerce; 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. There are several types of workers that are considered exempt employees, these include:
- Salaried Employees: 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.
- Outside Salespeople: Employees who work away from the main business location on a regular basis selling and/or taking orders to sell goods and services.
- Independent Contractors: Workers who qualify as subcontractors and are not technically employees of the business.
- Certain Computer Specialists: 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.
- Seasonal Employees: 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 7 months out of the year.
- Certain Newspaper Workers: Employees of certain small newspapers, as well as newspaper delivery people.
- Others: 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.
Common FLSA Violations
Employers often use creative methods to avoid paying the required overtime to non-exempt employees. Some of the most common overtime violations include:
- Misclassifications: One way employers frequently get out of paying overtime is to incorrectly classify a non-exempt worker into an exempt category. 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.
- Failure to Count all Hours Worked: Another way for employers to avoid paying required overtime is to have employees work “off the clock” in order 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.
- Miscalculating Pay Rates: 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.
Pursuing Legal Action in an Overtime Violations Case
If you believe your employer has committed an overtime violation by not paying you the compensation you are entitled to, you have some legal options. You can file a lawsuit. Also, if an employer harassed and/or wrongfully terminated you for asking for the pay you are entitled to, you may have a right to sue your employer for retaliation. Legal action must be taken within two years of the alleged overtime violation, or within three years if there is evidence that the violations were committed willfully and intentionally.
If you are considering legal action against your employer for overtime violations, it is important to speak with an attorney sooner rather than later. Attorney Kira Fonteneau understands the federal wage and overtime rules, and she can go over your options with you to decide the right course of action for your case. For a personalized consultation with Attorney Fonteneau, contact our office today at (404) 383-5720.