Employers Face Numerous Issues With Overtime Claims
Overtime Exemption schemes are numerous. Employers use various tactics to try and deny their workers fair compensation. Some of them are discussed below; however, the laws are constantly changing and legal representation as to these issues is absolutely mandatory.
Exemptions are Narrowly Construed
Any FLSA exemptions, such as the Motor Carrier Act and 49 U.S.C. § 31502, must “be narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit.” Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960). The burden of proving an exception rests upon the employer. Id. at 394. The party asserting an exemption, usually the employer, bears the burden of showing the applicability of the exemption, and that the employer is “clearly and unmistakably within the spirit and the letter of [the exemption’s] terms.” Pugh v. Lindsay, 206 F.2d 43, 46 (4th Cir. 1953).
Overtime Issues are Numerous and Complex
The following is a list of overtime issues, but the law is constantly changing and a lawyer should be consulted in all situations:
- Making less than $23,660 per year: The new overtime law mandates that if you earn less than $23,660 per year (or $455 per week), you are entitled to overtime even if you are on salary. As such, assistant managers at fast food or retail stores are often entitled to overtime.
- Misclassifying employees: Employers avoid paying overtime due to their employees by inappropriately classifying them as “exempt” from overtime pay. Employers will refer to employees as “managers” or “assistant managers” but require them to perform tasks that are not considered “managerial.” These persons must be paid overtime, despite their title.
- Uncompensated breaks or lunches: Rest periods of short duration such as 20 minutes or less must be counted as hours worked. Also, if an employee is required to clock out for lunch but that employee is not completely free from her duties during lunch, the employer must pay the employee for that time. A common example is a delivery driver who eats lunch while making delivers is still working.
- Adding workweeks: Overtime must be paid if, during any week, the employees hours exceed 40 hours. An employee who works 30 hours one week, and 50 hours the next week, must be paid 10 hours of overtime.
- “Off-the-Clock” or take-home work: Employers who require their employees to perform any tasks before clocking in or after the employee clocks out are liable for those additional hours worked. Sometimes, employees are required to begin working (such as setting up, roll call, time putting on or removing protective gear, etc.) but don’t clock in until later. Another example is a fast food worker who voluntarily continues to work at the end of the shift to finish cleaning.
- Unpaid Final Paycheck: Employers often terminate someone and then fail to give them their final paycheck. Normally, workers must receive their final paycheck of at least their minimum wages. Because the federal minimum wage is $5.15/hour, an employer violates federal law by failing to pay less than the minimum wage.
- Improperly treated as an independent contractor: Employees that are largely controlled by the company are not independent contractors and must be paid overtime.
- Tips: Employers are not permitted to require their employees to share their tips with managers, dishwashers, cooks, chefs or others who are not entitled to share in tips. This is improper usage of what’s referred to as a “tip credit”, and violates the FLSA.
- Bonuses: Employees paid bonuses or something “extra” are entitled to have these bonuses, shift differential, commissions and/or other incentive pay included in the calculation of overtime pay. Most employers fail to abide by this requirement.
- Requiring pre-approval for overtime: Denying employees overtime pay when the overtime is not approved by management often results in unfair treatment. If an employer knows or should know of an employee’s overtime work, it must be paid.
- Being “on call” or waiting time: Requiring the attendance of work-related meetings and/or training sessions but do not paying for those hours is also a violation. This includes employees that are “on call”, spent time traveling or who are not paid for time waiting (such as a secretary who is not paid while waiting for a client).
- Improper timekeeping: Some employers purposefully change their employees time, or use sloppy methods for recording the time. For example, using methods that automatically deduct lunch periods or automatically end the time at a certain period is often improper.
Contact Our Overtime Lawyers
Contact Massey & Duffy, PLLC, today if you or someone you know might be entitled to overtime or a minimum wage as a result of one of the above common overtime issues. We can take these types of cases on a contingency basis, with no fees or costs to our clients. We can also get twice the amount of overtime owed for our clients.