We handle a wide variety of overtime claims and wage disputes. Many employees have no idea that they are entitled to significant overtime pay. Employers often do not know or misinterpret the rules applicable to overtime pay.
The Fair Labor Standards Act (FLSA) requires that “non-exempt” employees (see definition below) receive overtime pay equal to 1.5 x their regular hourly pay for any hours worked over 40 in a week (“overtime”). While an employer may require employees to work overtime hours, the employer must pay the employee overtime pay at the rate of time-and-a-half. Overtime that has not been paid can still be collected up to two (and sometimes three) years from the date the pay was earned. In most cases, judges will also award additional damages, called “liquidated damages” in an amount equal to the unpaid overtime.
Exempt v. Non-Exempt Employees. Most, but not all employees are covered by the FLSA’s overtime rules. The law differentiates between “exempt” employees (who are not covered by the law) and “non-exempt” employees (who are covered by the law).
An employee who is paid hourly (not salaried) is automatically non-exempt and is entitled to overtime pay for working more than 40 hours in a week. To be covered by FLSA, you must actually be an employee and not an independent contractor.
Generally, high paying executive, professional, or managerial jobs are exempt and are not required to receive overtime pay. “Executives” are people who are company officers and have a very high degree of responsibility. “Professionals” are usually people whose jobs require special educational achievement, such as lawyers, architects, doctors, and teachers. Managers are usually people who supervise others. Just because a job title has the word “manager” in it does not necessarily make it an exempt position. The key is the actual job function and responsibilities.
Some employers try to avoid paying overtime by paying its employees a salary, rather than hourly. In such cases, the employees are still entitled to overtime pay if they are non-exempt. The overtime wages are calculated by dividing the weekly salary by 40 (or a bimonthly salary by 80) to get the regular hourly rate and then multiplying that rate by 1.5 to get the overtime rate.
Covered Employers. The FLSA’s overtime provisions apply to employers whose gross income exceeds $500,000 per year. Unlike the discrimination laws and the Family and Medical Leave Act, the number of employees makes no difference in determining whether an employer is subject to the FLSA.
Retaliation. It is illegal for an employer to retaliate against an employee for asking for filing an overtime claim. Retaliation is a separate violation of the law with additional remedies.
At Parks, Chesin & Walbert, we have a long history of aggressive and successful enforcement of overtime rights. We have represented public and private employees in significant litigation. If you have any question about your overtime or exempt status, give us a call.