• Do You Qualify for Overtime Pay?

  • Unpaid overtime claims are governed by a body of Federal statutes known as the Fair Labor Standards Act "FLSA". The FLSA requires that all employees be paid at least minimum wage for all hours worked and one half of their regular pay for all hours over forty in a workweek. FLSA claims typically arise when employers do the following:

    Mistakenly or purposefully treating employees as "exempt" from overtime pay under the FLSA. This is commonly referred to as "misclassification".

    Fail to identify, record or compensate "off the clock" hours spent by employees performing compensable, job related activities.

    Damages Allowed Under the FLSA 

    An employee who is not paid the required overtime under the FLSA can file a lawsuit in Federal court, and if successful, the employee can recover the following:

    The employee can recover their unpaid overtime,

    The employee can recover liquidated damages in an amount equal to the amount of the unpaid overtime, and 

    Payment of attorney's fees and costs by the employer. 

    Statute of Limitations 

    A 2-year statute of limitations applies to the recovery of unpaid overtime, except in the case of a willful violation, in which case a 3-year statute applies. In other words, unless the violations are willful, unpaid overtime may only be recovered within two years of when the violations occurred. 

    Exemptions - Employees Not Entitled to Overtime Pay 

    There are however exemptions to the mandatory overtime provisions of the FLSA. The most common exemptions include the following: 

    Executive Exemption: 

    If an employee meets the following test, then the employee is not entitled to overtime pay:

    The employee is compensated on a salary basis at a rate not less than $455 a week, 

    The employee's primary duties are managing the business or managing a customarily recognized department of the business,

    The employee customarily and regularly directs the work of least two or more other employees, and 

    The employee has the authority to hire and fire other employees, or the employee's suggestion and recommendation as to hiring, firing, advancement, and/or promotion are given weight.

    Administrative Exemption: 

    If an employee meets the following test, then the employee is not entitled to overtime pay:

    The employee is compensated on a salary basis at a rate not less than $455 a week, 

    The employee's primary duties are the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers, and

    The employee exercises discretion and independent judgment with respect to matters of significance to the business. 

    Professional Exemption:

     

    If an employee meets the following test, then the employee is not entitled to overtime pay:

    The employee is compensated on a salary basis at a rate not less than $455 a week,

    The employee’s primary duties must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment,

    The advanced knowledge must be in a field of science or learning, and

    The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. 

    Commissioned Sales Employees: 

     If an employee meets the following test, then the employee is not entitled to overtime pay:

    The employee is a commissioned sales employee of a retail or service establishment,

    More than half of the employee's earnings come from commissions, and 

    The employee averages at least one and one-half times the minimum wage  for each hour worked. 

    Computer Professionals 

     If an employee meets the following test, then the employee is not entitled to overtime pay:

    The employee must be compensated either on a salary or fee basis at a rate not less than $455 per week or, if compensated on an hourly basis, at a rate not less than $27.63 an hour, 

    The employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the duties described below,

    The employee’s primary duty must consist of: 

    1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications; 

    2) The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; 

    3) The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or 

    4) A combination of the aforementioned duties, the performance of which requires the same level of skills.  

    Highly-Compensated Workers

    The FLSA contains a special rule for “highly-compensated” workers who are paid total annual compensation of $100,000 or more.  A highly compensated employee is not entitled to overtime pay if:  

    The employee earns total annual compensation of $100,000 or more, which includes at least $455 per week paid on a salary basis,

    The employee’s primary duty includes performing office or non-manual work, and

    The employee customarily and regularly performs at least one of the exempt duties or responsibilities of an exempt executive, administrative or professional employee. 

    Retaliation Prohibited  

    The FLSA prohibits retaliation by employers against employees for asserting their rights under the FLSA. Retaliation can take the form of adverse employment actions or even termination. Damages for illegal retaliation can include employment, reinstatement, promotion, lost wages, liquidated damages, front pay, compensatory damages, reasonable attorney's fees and costs, and possibly even punitive damages.  

    Contact us today for a FREE consultation. Remember that the statute of limitations is running on your claim. We are hear to help you recover all of the wages that you are rightfully entitled to.