When is Overtime Due?
The Fair Labor Standards Act (FLSA) requires that an employee must receive on-time payment for work performed. Courts understand such timeliness to mean that an employer pays an employee on the regularly scheduled paydays.
Courts recognize that the “usual rule” is that a claim for unpaid overtime under the FLSA accrues at the end of each pay period. Accordingly, the statute of limitations begins to run on the day of that pay period. As stated in 29 CFR 790.21(b)provides in part: “The courts have held that a cause of action under the Fair Labor Standards Act for unpaid minimum wages or unpaid overtime compensation and for liquidated damages ‘accrues’ when the employer fails to pay the required compensation for any workweek at the regular payday for the period in which the workweek ends.”
What does the Fair Labor Standards Act Authorize?
The Fair Labor Standards Act authorizes the payment of all overtime hours at one and one-half the regular rate of pay for the hours worked for which employers did not properly pay. The FLSA authorizes liquidated damages unless the employer establishes that it acted in good faith and with reasonable grounds for believing it was not violating the FLSA. As we discussed in our Article, bringing an overtime case can be complicated.
How Do Our Attorneys Calculate Damages?
The employee’s regular rate for one week is the basis for calculating any overtime pay due to the employee. We determine the regular rate for a week mathematically. For example, we generally subtract 40 from the total number of hours worked. Next, we multiply the difference by the overtime rate. Employers fail to pay plaintiff the required overtime pay if it paid her less than that amount. Complexities occur when dealing with issues, such as the Fluctuating Workweek, and can require a significant amount of analysis. Unpaid and minimum wages under either Florida or Federal statutes are also available.
What Damages are Due for Overtime and Unpaid Wages?
Employers that violate the FLSA’s provisions are liable for the shortfall in timely minimum wage or overtime payments. They are also liable for an additional amount equal to that shortfall as liquidated damages. 29 U.S.C. § 216(b). The determination of willfulness for purposes of establishing the statute of limitations is an issue of fact for the jury. The determination of good faith for purposes of establishing liquidated damages is a question of law for the Court. 29 U.S.C. § 260 (2006).
Courts may award less than full liquidated damages only if the employer shows both that it acted “in good faith and that [it] had reasonable grounds for believing that [its] act or omission was not a violation of the [FLSA].” 29 U.S.C. § 260. There is a “strong presumption under the statute in favor of doubling.”
Who Has The Record-Keeping Burden in an FLSA Action?
When an employer has failed to keep accurate records of an employee’s work time, the procedure is simple. When representing employees, we establish work for which an employee was improperly compensated. We also produce sufficient evidence to show the amount and extent of that work. Courts often require the employee to provide only a reasonable approximation of the number of hours worked. Once an employee has provided that reasonable estimate, the burden switches to the employer to come forward with evidence of the precise amount of work performed. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result may be only approximate.
What If the Employer Pays Overtime Late?
Employers cannot simply tender full payment in order to moot the case and avoid paying attorneys’ fees and costs. Under the FLSA,[a]ny employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. . . . 29 U.S.C. § 216(b).
The Eleventh Circuit, construing this provision, has held that “[t]he FLSA plainly requires that the plaintiff receive a judgment in his favor to be entitled to attorney’s fees and costs.” This provision has been interpreted to mean that “fee awards [are] mandatory for prevailing plaintiffs.” Collective actions are also possible.
Let our Experienced Wage and Overtime Lawyers Help You
Overtime compensation, in particular, can be an extremely complex area of the law. Fair Labor Standards Act exemptions, jurisdictional issues, and other problems can mean the difference between winning and losing. We can take these types of cases on a contingency basis, with no fees or costs to our clients.
Typically, if you are a non-exempt employee you must be paid one and a half times your normal hourly rate for any hours worked in excess of 40 during your work week. If you are not paid overtime, and you are a non-exempt employee, you may have a claim against your employer. Just because you are paid a salary or receive a commission, that does not mean that you are necessarily an exempt employee.