The Law Office of Robert J. Hunt, LLC focuses a substantial portion of its law practice on helping employees recover unpaid overtime. Most workers in the United States are covered under the Fair Labor Standards Act “FLSA.” Employers across all industries routinely violate the overtime requirements of the FLSA. At The Law Office of Robert J. Hunt, LLC, we can help you determine whether your employer’s pay scheme is legal.
Common 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 worked, or reasonably should know you did, you are entitled to the pay.
Paying an employee “straight time” rates for overtime work
If an employee makes $10 per hour, he or she should get paid $15 per hour for overtime hours. Some employers only pay employees their straight time rate ($10 in the example) for all 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.
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 an IRS 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 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 shorter lunches. Automatic time clock systems frequently do not record this extra work time, and employees do not receive the wages they are owed. Some employers use time clocks that round employees’ starting and stopping times to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour. The FLSA requires that rounding policies be neutral and that they average out so that the time worked by the employee is properly counted and the employee is fully compensated for all the time he or she works. Time clock rounding policies are not legal if they favor the employer the majority of the time.
Call Center Employees
Many call center employees are not paid for all the time they work each day. The FLSA requires that call center employees must be paid from the time they begin their first work activity until the time they conclude their last work activity.
Typically, call center employees are required to be on the phone when their scheduled shifts begin. Because of this requirement, call center employees regularly arrive to work prior to the start of their shifts to begin their work activities, such as checking-out headsets, booting-up computers, and reviewing emails or workday instructions. Often, these work duties are unpaid and can take 10-15 minutes each day to complete. Many call centers permit employees to clock in 5-7 minutes prior to the start of their shifts, but then round up the employees’ time so pay doesn’t start until the beginning of the scheduled shift. Sometimes, call center employees are only paid for the time they are handling calls and are required to clock out when they take breaks or even use the restroom.
Problems also can arise at the end of shifts in call centers. Most call center employees are required to finish their calls, even if the calls extend beyond the end of their scheduled shifts. In many instances, however, call center employees only receive pay until the end of their scheduled shifts. This occurs because the employer simply refuses to pay the employees beyond of the end of the scheduled shifts, or because the employer utilizes a time clock that rounds the call center employees’ time back down to the end of the scheduled shifts.
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.
If you have questions about any of the overtime violations described above, contact The Law Office of Robert J. Hunt, LLC for additional information. The Law Office of Robert J. Hunt, LLC represents employees throughout the United States. For Indiana employees, Robert Hunt can file overtime lawsuits in federal courts located Indianapolis, IN; South Bend, IN; Fort Wayne, IN; Hammond IN; Terre Haute, IN; Evansville, IN; Lafayette, and New Albany, IN.
Are you Exempt?
Just because you are paid a salary does not necessarily mean you are exempt from federal law overtime requirements. Know your rights under the FLSA.
When it comes to overtime under the federal law, all employees are either “exempt” or “nonexempt.” Every nonexempt employee is entitled to overtime pay, even if he or she is salaried or paid a commission.
Most employees who are paid on an hourly basis are “nonexempt” — and thus must be paid overtime — no matter what kind of work they do.
Don’t believe the “salary myth.” Even if you are paid a salary, to be exempt your job duties must fall within one of the categories the U.S. Department of Labor has classified as exempt.
Your status as an exempt or nonexempt employee does not depend on how the employer characterizes you, but rather on the actual job duties you perform.
Generally, you are exempt from overtime pay only if:
You are paid a salary (not hourly); and
You perform the duties of an exempt employee.
Exempt employee duties fall into one of three categories:
Professional Exemption; or
If you believe that you are not being paid for all of the time you have worked or that you are not being paid overtime that you are due, please call us or fill out our online consultation form.
If you have questions about any of the overtime issues described above, contact The Law Office of Robert J. Hunt, LLC for additional information. The Law Office of Robert J. Hunt, LLC represents employees in federal overtime and lawsuits throughout the United States. For Indiana employees, Robert Hunt can file overtime lawsuits in federal courts located Indianapolis, IN; South Bend, IN; Fort Wayne, IN; Hammond IN; Terre Haute, IN; Evansville, IN; and New Albany, IN.