Contributor: Amanda A. Farahany
Company: Barrett and Farahany, LLP
Title: Managing Partner at Barrett and Farahany, LLP
Work takes up a lot of time. In accepting a job, you make an inherent agreement with your employer to provide your time and skills in exchange for a particular rate of pay. But what happens if you work overtime? And, when you do, are you getting all the pay you’re entitled to receive?
Labor Laws Protect Workers
The full-time workweek is 40 hours. Sometimes you may need to work more than 40 hours to get the job done, and your company can require that of you. However, if you’re employed in certain capacities, the Fair Labor Standards Act (FLSA) requires not only that you be paid for the time that you’ve worked, but also time-and-a-half for any hours over 40.
This is true whether you’re paid by the hour or a salary. There is a common misperception that salaried employees are not entitled to overtime, but that’s not necessarily the case unless your duties as a salaried employee make you exempt from overtime pay — a status that’s not as common as you may think.
According to the FLSA, exemptions from both minimum wage and overtime pay are allowed for employees in executive, administrative, professional and outside sales roles. Some computer employees may also be exempt. But to qualify for an exemption, employees must meet certain tests regarding their job duties and salary basis. For example, if you’re not managing people, you don’t have the power to hire and fire, and you don’t have a lot of independent discretion (even if your title includes managerial terminology), you may be owed overtime.
Unfortunately, some employers attempt to get around the rules because doing so will benefit their bottom line. In addition to misclassifying nonexempt employees as exempt when they are not, they may have employees work “off the clock.” If you’re told to do work that you aren’t compensated for before your shift starts or after it ends, or you’re asked to forego pay on a project redo when you initially did it for pay, you’re being required to do off-the-clock work. When you perform a task on behalf of your employer, you’re entitled to be paid for it.
Employers also try to avoid their obligations under the FLSA by hiring contract workers who receive a 1099 rather than a W-2 at the end of the year. In this scenario, employers pay individuals for their time but do not pay the Medicare, Social Security, payroll or other taxes that they would for employees. While hiring contract workers is a common and legal business practice, it’s illegal for employers to hire and pay workers on a contract basis and exert the same amount of control over those workers as they would regular employees.
What You Can Do
If you think you might be owed overtime pay that you have not received, check with your company’s human resources department to see whether your role is classified as an exempt or nonexempt employee. If you’re classified as nonexempt and you have not been paid overtime that you worked, or if you are classified by your employer as exempt but your duties aren’t managerial, you may have legal recourse to file a claim against your employer. In either case, it’s best to consult with an employment law attorney as soon as you are able to do so. Time is limited: You have two years to make a claim for unpaid overtime or, if withholding your overtime pay was a willful act on the employer’s part, you have three years to file a claim. An attorney can help you get the proper pay for the hours you worked, as well as additional liquidated damages and your attorney’s fees.
In the workplace, not everything that is unfair or unjust is illegal — but when employers cross the line, the law is the tool we can use to address the injustice that results. If you’ve worked overtime that you’re entitled to receive payment for but have not, the law may provide you with a remedy that will help right the wrong you’ve experienced.Published in