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The Most Frequently Cited Overtime Law Violations

Misclassifying workers as “exempt” from overtime

To be “Exempt”, an employee must generally be an executive, administrative, or professional employee. Companies will try to fit employees into these categories even where the law does not allow for it.

Making employees work off the clock

Employers may tell workers to clock out and finish their work. They may say something like “Well you have to stay until it gets done, but I’m not paying you for it. You should have gotten finished with it during your shift.”

Denying an employee overtime because it wasn’t “approved” in advance

Bosses tell employees that they can’t work overtime unless it is approved. They also tell them that they won’t pay them for the hours they do work unless it is approved in advance. The law says if your boss knows you work it, or he reasonably should know you do so, you are entitled to the pay.

Paying an employee “straight time” rates for overtime work

If an employee makes $10 per hour, he should get paid $15 per hour for overtime hours. Some employers only pay employees their straight time rate ($10 in the example) for hours they work.

Failing to count all hours an employee works

Employers often fail to give 30 minutes free from duty for lunch breaks. They also fail to count travel time or they don’t count short breaks as hours employees should be paid for.

Compensatory or “Comp Time”

Compensatory time or “comp time” occurs when an employer allows an employee to receive days off in lieu of overtime compensation. Comp time in lieu of overtime compensation is permitted when you are a governmental employee, and when certain conditions are met.

In general, non-exempt employees working for private employers are eligible for overtime pay during the weeks in which they work overtime. Private employers cannot give comp time to non-exempt employees in lieu of overtime pay and require those employees to use comp time at a later date. Non-exempt employees must be compensated for overtime during the week in which it is worked.

Assistant Managers / Shift Supervisors

Many employees with job titles such as “assistant manager” or “shift supervisor” believe they are not eligible to receive overtime as they are supervising others. Assistant managers or shift supervisors who do not regularly supervise two or more employees, do not have the authority to hire or fire employees, or spend the majority of their time performing the same duties as the employees they supervise may be eligible for overtime pay.

Independent Contractors

Employers often improperly classify their employees as “independent contractors” in order to avoid paying these employees minimum wage or overtime compensation. The employer’s use of a Form 1099 does not automatically make an individual an independent contractor in the sense relevant to overtime and minimum wage laws. Several important factors may be considered in determining whether you have been improperly classified as an independent contractor. These factors include: (1) whether the person or entity to whom you are providing services has control or the right to control your work or the manner in which you perform you work; (2) the permanence of the working relationship; (3) the degree of skill required to perform the work; and (4) the degree to which your services are an integral part of the principal’s business.

Automated Time Clock Systems

An increasing number of employers are using computerized timekeeping systems to track their employees’ work hours. Many such systems are set to automatically clock employees in and out at certain times or to automatically record a lunch of a set duration. However, many employees arrive at work early, stay late, or take short lunches. Automatic time clock systems frequently do not record this extra work time, and employees do not receive the wages they are owed.

Call Center Employees

Frequently, call center employees are paid for a set timeframe, such as 8:00 a.m. to 5:00 p.m., but they may be required to be at their workstations before and/or after the shift without being compensated for this extra time. This practice violates the law.

Computer/IT Employees

The Fair Labor Standards Act contains very specific provisions for employees who work with computers. In order to be exempt from the FLSA, computer employees must be paid at least $27.63 per hour or they may be paid a salary of $455 per week. Additionally, exempt computer employees must work in software design, systems analysis, or similar areas. Frequently, employers do not fully understand these requirements and assume that employees working with computers should not be eligible for overtime pay.