Under the Fair Labor Standards Act, many employees are entitled to overtime pay. If an employer requires a non-exempt employee to work overtime and does not pay him or her appropriately, he has violated overtime laws and may face penalties. But before you hold your employer accountable for failing to pay you overtime, you need to prove that you were not exempt, prove your employer violated overtime laws, and calculate how much overtime your employer owes you.
Call Gibbons Leis, PLLC at704-612-0038 for help. An overtime misclassification lawyer in Charlotte can help you prove that your employer misclassified you and that you deserve overtime pay and other compensation. We have over two decades of experience in employment law and only represent wronged employees – never employers.
What is overtime pay and who is entitled to it?
The Fair Labor Standards Act (FLSA) covers employers who make a minimum of $500,000 in annual sales or are engaged in interstate commerce. Covered employers must give non-exempt employees who work over 40 weeks in a workweek “overtime pay.”
Overtime pay is a minimum of one-and-a-half times an employee’s regular hourly rate of pay. Your regular rate of pay includes any compensation you receive at work, including wages, commission, and performance-based bonuses. Essentially, if you make $16 an hour, your boss needs to pay you $24 for each hour you work over 40.
However, not all employees are entitled to overtime, even if their employer is covered by FLSA. The following employees are some of those exempt under federal overtime laws:
- Executive, administrative, professional, or other employees paid on a salary basis. Salary basis means that the employee’s salary is at least $455 per week and does not change based on hours or work productivity. This is called the salary basis test.
- Independent contractors
- Employees who work in outside sales
How might an employer violate overtime laws?
Misclassifying an Employee as Exempt
Some employers attempt to avoid paying overtime by wrongfully classifying employees as exempt. Common forms of misclassification include:
- Classifying an employee as a manager or assistant manager without giving them any supervisory duties
- Failing to pay an employee a salary of $455+ per week or docking salary based on illegal reasons (e.g., work performance, quantity of work completed, etc.)
Requiring Employees Work Off the Clock
Some employers instruct their employees to clock out and then continue working. They do this to keep their hours under 40 hours for the week, and may incorrectly argue that the employee is responsible for completing the work even if they do so after their shift.
Arguing the Employee Did Not Get Overtime Work Pre-approved
Some companies have policies requiring employees get their overtime approved in advance. But even if your company requires pre-approval and even if you do not request it, your employer is responsible for paying your overtime.
Paying Regular Wages for Overtime Work
Your employer must pay you time-and-a-half for overtime work. But some employers argue that they only have to pay you your regular wages, even if you work more than 40 hours in the week. This is incorrect and illegal.
Failure to Count All Hours Worked
Employers who fail to count all of an employee’s hours could also be in violation of overtime laws. Common examples include:
- Insisting that employees work during their unpaid break
- Requiring the employee to do work for free outside of the office
- Saying an employee worked 40 hours when they actually worked 45 hours
Comp Time in Lieu of Overtime Pay
Government employees may accept days off in lieu of their overtime compensation, but most private employers cannot offer days off in lieu of overtime pay. Private sector employees not exempt from overtime pay mut receive the overtime pay they earned.
Misclassification as an Independent Contractor
Some employers argue that an employee is actually an independent contractor, and thus they do not have pay them overtime. Independent contractor misclassification is a common type of employer violation, and has implications beyond just failure to pay earned overtime.
Automated Time Clocks
Many time clocks come with features that automatically clock employees in and out at their scheduled start and stop times. But employers are still responsible for paying overtime if the employee comes in early, takes a short lunch, or stays late, regardless of whether they were clocked in or out automatically.
Call Center Employee Overtime Violations
Call center employees may receive pay for a pre-determined timeframe, but some call center employers require they come in early for a daily meeting or to set up their equipment. They deserve overtime pay for this time if it puts them over 40 hours for the week, even if it is only a few minutes a day.
What should I do if I think my employer misclassified me as exempt from collecting overtime?
Employees who are entitled to overtime pay but have been misclassified may be eligible to file a lawsuit against their employer.
A valid case satisfies the following elements:
- Your employer is covered by FSLA.
- You are a non-exempt employee.
- Your employer misclassified you as exempt.
- You did not receive some or all of the overtime pay you were entitled to.
Unfortunately, just proving these criteria does not guarantee your employer will give you the money he owes you. Your employer may argue that you failed to ask for overtime or that he was unaware that you were working overtime.
The legal team at Gibbons Leis, PLLC has decades of experience fighting employers who misclassify employees. They have heard all the excuses and know the ways to fight against them. Our team will work together to investigate the reasons for your misclassification and build the strongest case possible to recover the overtime pay you earned.
Resolving Overtime Pay Issues
Employees that are eligible for overtime must receive payment for the extra hours they worked. If you can prove misclassification, you may recover damages including:
- Unpaid Overtime Wages: You will receive the overtime wages owed to you for the extra hours you put in.
- Liquidated Damages: Under the FLSA, you may be able to recover double the amount of unpaid overtime wages owed to you in lieu of interest on the unpaid wages. An employer can avoid paying liquidated damages if it can show that it acted in good faith and did not intentionally fail to pay you what you were owed.
- Attorney’s costs and court fees
Before taking any legal action, you should speak to a Charlotte overtime pay attorney. Give us a call today to see how Gibbons Leis, PLLC can help you: 704-612-0038.