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The Law Office of Robert J. Hunt, LLC

Get Answers To Your Most Frequently Asked Wage and Hour Law Questions

Dealing with overtime and unpaid wages comes with a lot of questions, which is why we've compiled some of the questions we hear the most in our Indianapolis law firm. Please feel free to give us a call if you have any more questions that have not been answered on this page.

 

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  • Can I be fired for filing an overtime claim?

    Not legally and not without risking a substantial penalty. The FLSA specifically provides that it is “unlawful for any person … to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted any or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding.”

    An employer who retaliates or discriminates against an employee in violation of this statute is potentially subject to fines or even criminal prosecution, and the affected employee is entitled to “legal or equitable relief … including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount” plus attorneys’ fees and court costs. Punitive damages are available in appropriate cases, and “anti-retaliation” cases may be brought against individuals as well as institutional employers. In addition to “firing” cases, retaliation has been found when employers blacklisted employees who made FLSA claims, refused to hire applicants who had made FLSA claims at other jobs, fired relatives, reduced job responsibilities, assigned employees to unpopular job duties or shifts, disciplined employees out of proportion to past disciplinary practices, reduced performance evaluations, and declined to recommend “normal” raises.

  • Is there a statute of limitations for overtime claims?

    The FLSA allows you to recover the overtime pay you are owed for hours worked within two years back from the date you file suit or consent to join an existing lawsuit. For example, if an employee were to file an FLSA lawsuit on January 1, 2013, he could only attempt to recover pay for time worked after January 1, 2011. In some cases, where the employer is found to have willfully or recklessly violated the FLSA, you may be able to recover pay from three years prior to the date you file suit or consent to join an existing lawsuit. Because of these limitations, if you think you may be owed overtime pay it is important that you consult an overtime lawyer as soon as possible. If you do not pursue the pay you are owed, some or all of your claim may be barred by the passage of time.

  • What can I do if my employer has refused or failed to pay me overtime?

    If you are owed overtime pay or minimum wage, your should contact one of our experienced overtime attorneys to help you recover the pay you are owed. Under the FLSA, employees who are “similarly situated” (i.e., they work in similar jobs and are subject to the same pay policies and procedures) can pursue their back wages through a “collective action.” This is often the most effective way for employees to recover their overtime pay, because it allows a group of employees the advantage of lower individual costs to vindicate their rights by the pooling of resources.

  • If my employer classifies me as an independent contractor, am I entitled to overtime?

    Independent contractors are not employees, and therefore are not entitled to overtime. Many employers, however, misclassify employees as independent contractors to avoid paying overtime and other benefits.

  • Can my employer award me compensatory or “comp” time instead of paying me overtime?

    No. Only government employees (public sector) are permitted to receive comp time. If you work overtime, you are entitled to be paid.

  • Can my employer refuse to pay me overtime if it was not approved?

    Probably not. If your employer knew you were working overtime, or should have known, you probably are entitled to be paid.

  • Can my employer require me to work “off the clock”?

    No. You are entitled to be paid for all time worked. Employers are not permitted to require employees to perform work prior to the start of their shifts, during unpaid lunch breaks, or after their shifts have ended.

  • How is overtime paid?

    Under most circumstances, overtime is paid at time and one-half the “regular rate of pay” for every hour worked in excess of 40 hours in a workweek. There are some exceptions to this rule. In certain situations, employees can legally be paid less then time-and-a-half for overtime hours. If an employee who is eligible for overtime receives commission as part of his compensation, his overtime pay only needs to include one-half the hourly amount he receives for commission (though his base pay, if he receives any, should still be paid at time-and-a-half). For example, if such an employee earns $1,000 in commission for a week in which he worked 50 hours, he is effectively earning $20/hour from the commission payment. He should be compensated for the 10 overtime hours he worked that week at one-half his commission rate, or $10/hour, in addition to overtime compensation for his base rate, if any.

    Another method under which employees can be paid half-time for overtime hours is known as the “fluctuating workweek method.” Under this system, the employee must receive a fixed weekly salary for a work schedule that fluctuates from week to week, and the salary must be large enough that the employee receives at least the minimum wage for his longest workweeks. Additionally, there must be a “clear, mutual understanding” between the employer and the employee that the weekly salary is meant to compensate the employee for whatever number of hours the employee might work, whether many or few. If these requirements are met, the employee may be paid at the rate of one-half the effective hourly rate for his overtime hours.

  • What is overtime?

    Under the FLSA, any hours worked in excess of 40 in a workweek are considered overtime. A workweek can be any fixed period of seven consecutive days and can begin on any day of the week. For purposes of calculating overtime, each workweek is considered separately and cannot be averaged across two or more pay periods.

  • What is the law that governs overtime and minimum wage cases?

    The Fair Labor Standards Act or FLSA is the federal law that governs the payment of overtime and minimum wage.

  • Can I be fired for filing a minimum wage or overtime claim?

    Not legally and not without risking a substantial penalty. The FLSA specifically provides that it is “unlawful for any person … to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted any or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding.” An employer who retaliates or discriminates against an employee in violation of this statute is potentially subject to fines or even criminal prosecution, and the affected employee is entitled to “legal or equitable relief … including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount” plus attorneys’ fees and court costs. Punitive damages are available in appropriate cases, and retaliation cases may be brought against individuals as well as institutional employers.

    In addition to “firing” cases, retaliation has been found when employers blacklisted employees who made FLSA claims, refused to hire applicants who had made FLSA claims at other jobs, fired relatives, reduced job responsibilities, assigned employees to unpopular job duties or shifts, disciplined employees out of proportion to past disciplinary practices, reduced performance evaluations, and declined to recommend “normal” raises.

  • Is there a statute of limitations for overtime and minimum wage claims?

    The FLSA allows you to recover the minimum wage pay you are owed for hours worked within two years back from the date you file suit or consent to join an existing lawsuit. For example, if an employee were to file an FLSA lawsuit on January 1, 2013, he could only attempt to recover pay for time worked after January 1, 2011. In some cases, where the employer is found to have willfully or recklessly violated the FLSA, you may be able to recover pay from three years prior to the date you file suit or consent to join an existing lawsuit. Because of these limitations, if you think you may be owed minimum wage pay it is important that you consult an FLSA lawyer as soon as possible. If you do not pursue the pay you are owed, some or all of your claim may be barred by the passage of time.

  • How much can I recover if I file suit?

    The FLSA allows you to recover the minimum wages you should have been paid within the time frames discussed above. In some cases, you can also recover liquidated damages in an amount equal to the wages you are owed. If you prevail in your claim, you may also be awarded attorneys’ fees and costs.

  • What can I do if my employer has refused or failed to pay minimum wage?

    If you are owed minimum wage, you should contact one of our experienced attorneys to help you recover the pay you are owed. Under the FLSA, employees who are “similarly situated” (i.e., they work in similar jobs and are subject to the same pay policies and procedures) can pursue their back wages through a “collective action.” This is often the most effective way for employees to recover their minimum wage pay, because it allows a group of employees the advantage of lower individual costs to vindicate their rights by the pooling of resources.

  • What is the minimum cash wage if I am a tipped employee?

    Section 3(m) of the FLSA permits an employer to take a tip credit towards its minimum wage obligation for tipped employees equal to the difference between the required cash wage (which must be at least $2.13 per hour under federal law) and the federal minimum wage. Some states have laws that require employers to pay more than the federal minimum cash wage of $2.13 per hour. For example, the minimum cash wage for tipped employees in Illinois is $4.95. The minimum cash wage in Michigan is $2.65. The minimum wage in Ohio is $3.85. The minimum wage in Indiana and Kentucky is $7.25.

  • What is the law that governs minimum wage cases?

    The Fair Labor Standards Act or FLSA is the federal law the governs the payment of minimum wage.

  • What is the minimum wage?

    The current federal minimum wage is $7.25 per hour. Even if you are not paid on an “hourly” basis, you should receive at least the minimum wage for every hour that you work. Divide your weekly compensation for a given week by the number of hours you actually worked that week, and you should be earning at least $7.25 per hour. Some states have laws that require employers to pay more than the federal minimum wage. For example, the minimum wage in Illinois is $8.25. The minimum wage in Michigan is $7.40. The minimum wage in Ohio is $7.85. The minimum cash wage in Indiana and Kentucky is $2.13.

  • What is wage theft?

    “Wage theft” is one of those phrases a lot of people have heard, but aren't sure if it applies to them. What does it mean? How can you be a victim of wage theft if you're getting a paycheck every week?

    Wage theft can come in many forms, but overall, it is when employers unlawfully keep wages from the employees that deserve them. Among the business practices that can constitute wage theft are:

    Minimum Wage Violations. The federal minimum wage provisions are contained in the Fair Labor Standards Act (FLSA) and are currently $7.25 an hour. The state of Indiana's minimum wage is also $7.25 per hour, so there shouldn't be any confusion with which one applies. If you are not making at least $7.25 an hour, you may be the victim of wage theft.

    Denial of Overtime Pay. Unless you're classified as exempt by the FLSA, you should be entitled to overtime pay after you've worked over 40 hours in a week.

    Misclassification As an Independent Contractor. Independent contractors do not receive many of the benefits that employees of a company receive, including overtime pay and various protections. Many businesses illegally classify employees as contractors in order to skimp on wages and benefits.

    Not Receiving Pay. Some employers will blatantly just not pay someone who has done work. This could mean they did not pay for all the hours you worked, didn't pay your last paycheck when you left, or didn't pay extra when you worked through lunch or through a scheduled break.

     

    The bottom line is that if you did work and you were not paid for it properly, you are a victim of wage theft. You may love your job, but that doesn't mean you're willing to work for free—and you shouldn't work for free. If you think you may be the victim of unpaid wages in Indiana, contact the The Law Office of Robert J. Hunt, LLC for a free consultation.