Overtime Pay Rights Under Fair Labor Standards Act (FLSA)
Posted: Thursday, June 01, 2006
by Dan Getman
Getman Law Office
The federal overtime law (Fair Labor Standards Act or FLSA) is one of the most violated labor laws. Most workers should get paid overtime. The basic protection of the law is that a covered employee is entitled to overtime at the rate of time and one-half for all hours actually worked over 40. Even undocumented workers are entitled to be paid time and one-half for hours over 40.
The federal overtime law was enacted in 1938 during the great depression as part of the new deal social legislation. The overtime law is part of the same law which governs the minimum wage. Interestingly though, the overtime provisions do not just apply to minimum wage or low wage workers, but apply to virtually everyone. Time and a half is to be calculated on the basis of the regular hourly rate, no matter how much or how little you make, and regardless of whether you are paid by salary, hourly or commission or some combination.
Here are the basic principles for determining whether you are entitled to overtime. Generally, if your employer “suffers or permits" you to work, it must be counted as work time. The employer cannot argue they didn’t want you to do the work, if they knew or should have known you were doing it.
If the activity you do benefits the employer it is considered work. Short breaks are considered to be work time for the reason that these breaks really benefit the employer, by increasing productivity. If you are free to do whatever you want with the time off (such as lunches of one half hour or more), the time is considered to be free time, not work time.
If your employer fails to pay you overtime, you have the right to bring a legal claim for double the amount that you were shorted. A claim can generally be brought only for unpaid overtime wages within the last two years. If the employer’s failure to pay the wages is “willful" you can get back pay for the three prior years. The double damages can make even small claims worth your while to collect.
You cannot be fired or retaliated against for bringing an overtime claim to court or for contacting the U.S. Department of Labor to file an administrative claim. But, some courts have said the law does not protect someone who complains directly to the employer about their right to overtime pay. So if you are interested in finding out whether you are entitled to overtime pay, the employer is not the best place to start asking. Instead, it would be more advisable to contact an experienced labor lawyer or the US Department of Labor to see if you have a valid claim.
Another interesting side of the overtime law is that if an employee wins an overtime claim, the employer must pay the employee’s legal costs and attorneys’ fees. This makes it possible for a labor lawyer to represent you without having to pay money up front, in many cases.
Some employers try to get out of paying time and one half by paying “comp time." Comp time is not a permissible substitute for time and one half. The only workers who can legitimately accept comp time instead of time and a half are government workers who individually agree to accept comp time, or where their union has agreed to accept comp time.
One of the major ways that employees get cheated is by not being paid for all the hours that they really worked. Sometimes its not so easy to tell what is considered “work time." For example, breaks of 20 minutes or less generally must be considered to be work time and you must be paid for those breaks. An employer need not count lunches of ½ hour or more as work time if the employee is free to spend lunch as they wish. Time spent listening to the bosses instructions is work time. Time spent cleaning machinery and the job site is work time. So is work you do for your employer at your home, whether it is on the clock or not. Work that is paid by the piece or by the job, instead of by the hour must still work out to be paid at the rate of time and one half if the regular work hours are more than 40. “On-call" and “on-beeper" time may not be required to be considered as work time, if you are partially free to do other things. There are some complicated rules that apply to determine whether you must be paid overtime for this time.
There are some exceptions to the overtime law. Independent contractors have no right to overtime. Many workers that are treated as contractors however, are really being cheated by their employer by being mis-classified as independent contractors. Most manual laborers who are being treated as contractors are probable really employees and therefore entitled to overtime.
The other major exception to the overtime law is for certain salaried workers. There are stringent tests for which salaried workers are allowed not to be paid overtime. In some instances, the employer is wrongly treating workers as exempt from the overtime laws simply because they are paid on a salary basis. Any worker who is subject to a reduction in pay for the quality or quantity of work, or who is subject to reduced pay for disciplinary reasons, is probably not a true “salaried" worker and so must be paid overtime.
Some other workers excluded from the overtime law are some seasonal camps and fair workers, most agricultural work performed on a farm, small newspaper workers, domestic servants and certain caregivers for the old or infirm. And, there are other miscellaneous exceptions.
The overtime law is one of the basic rights of
To take an automated on-line questionnaire to determine if you were entitled to overtime pay, go to http://www.getmanlaw.com/questionnaire/
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Top-level comments on this article: (4 total)Is there a number to report people who don't pay over-time?You can contact the U.S. Department of Labor, which can conduct an investigation. However, for people who are themselves denied overtime, it is usually more advantageous to contact an attorney who regularly handles overtime pay cases. These lawyers generally work on a contingency fee, so there are no upfront charges and they only get paid when they win your case. Also, since that is the way the attorneys get paid, they are not likely to take a weak case. Private lawyers will seek back pay and an equal amount in liquidated damages for their clients, which is what the law provides. The Department of Labor generally settles only for back pay. Dan Getman Getman Law Office
Yes, it has been very helpful in fact and will become a fan of your club. I do have a question for assurance:
I have a litigation going in California regarding over time. I am a UNIX systems administrator and in order to perform my job I use pre-existing procedures or telephone support from the computer manufacturer such as Sun Microsystems, IBM, etc. I know that the bottom line in any over time litigation is the use of "independent thinking" something it is not used by computer administrators as the procedures they use are pre-existing at th computer's manufacturers web site and some other web sites with tons of computer information for free. Can you give me some advise on this issue?
Thanks ahead of time for your help.
RobertRobert, I cannot comment on an existing case on which you have an attorney. You should contact your attorney. I wish you luck. If you don't have an attorney, please let me know what court your case is pending in. You contact me through my website. You can google Getman Law Office. Thanks.
Dan Getman
i have a question.......i work for a childcare center in charlotte n.c and i worked 12minutes over 40 hours in a week and my boss told me that they pay for every 15 minutes and since i didn't work upto 15 minutes they didn't have to pay me.......I just wanted to know if these is correct or not......to let you know i feel that if they did pay these way then why wouldn't i told about it when i was hire....which they never said anything about this and second i am 44 years old and never heard of this........so like i said i just wanted to know the correct answer!!! thank you
I work on hourly and I have constantly mentioned overtime to my boss. She has said the hours you worked overtime you can bank them and use them for vacation or sick days because I cannot afford to pay you overtime. I have mentioned this to a few people and they told me this is very wrong to do and anything worked over 40 hours I am entitled to overtime. And she has breeched an employment contract. I am not too sure what I should do from here oir if I even have a case.
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