Frequently asked questions about overtime and other wage claims

  1. What is the FLSA? The Fair Labor Standards Act (FLSA) is a federal law that mandates overtime pay for all “hours worked” beyond 40 hours in a workweek. The FLSA also sets guidelines for employment of minors and includes wage and hour record keeping requirements.
  2. How long do I have to bring a FLSA claim? 3 years if the FLSA violations were willful, 2 years otherwise. Please bear in mind that longer periods may be available under state law (for example, California allows 4 years and New York allows 6 years.  It is very important that you act quickly if you believe you have a potential wage claim. If you wait too long you will lose your right to recover your backpay.
  3. What are FLSA damages? Successful FLSA claimants receive unpaid overtime and wages beginning 2-3 years before the claim is filed. Depending on the facts of the case they can also receive double the amount of back pay. The FLSA also requires that the employer pay your court expenses attorneys’ fees. Additionally, if you are one of the first individuals to come forward with allegations of widespread wage and hour violations, you might also be eligible for an incentive award in addition to your unpaid wages.
  4. I’m worried my employer will fire me if I bring a claim. Can they? It is illegal to fire a worker because they file a FLSA claim. Similarly, it is illegal for an employer to retaliate or discriminate against a worker for filing an FLSA claim. Punitive damages are available against employers who unlawfully retaliate or discriminate.
  5. What’s the difference between exempt and nonexempt workers? Nonexempt workers are covered by FLSA rules and regulations, including the legal right to overtime pay; exempt workers are not. Regardless of whether you are classified as salaried, hourly or labeled as an independent contractor, you may be eligible for overtime if you work more than 40 hours in a workweek.
  6. Am I exempt or nonexempt? Typically, only executive, supervisory, professional or outside sales positions are exempt positions. These exemptions are defined by the FLSA, regulations issued by the U.S. Department of Labor, and court cases. These exemptions typically don’t apply to workers.
  7. Employees vs. independent contractors? Independent contractors fully control their own work and aren’t eligible for overtime pay. Unfortunately, some employers have intentionally misclassified workers to cut costs and evade FLSA compliance.  Misclassification of employees as independent contractors has become very common.  When employers improperly classify employees as independent contractors, the employees don’t receive overtime compensation, unemployment insurance, and other benefits. Misclassification also gives the employer an unfair economic advantage over competitors who properly classify their employees.
  8. What if my employer says my job is exempt? The FLSA requires that employers classify jobs as either exempt or nonexempt. Employers routinely misclassify nonexempt jobs as exempt. For example, you might be called an “assistant manager,” even though you don’t manage other employees or have much decision-making authority. If this describes you and you haven’t been paid overtime, you may have a claim for unpaid overtime wages. Our legal team can challenge the misclassification as part of your claim.
  9. Do salaried employees get overtime? Salaried employees are generally eligible for overtime pay unless they are executives, administrators (non-manual office workers), commissioned salespeople, computer programmers, or professionals.
  10. What counts as an “hour worked?” The FLSA provides nonexempt workers have special legal rights relating to breaks, working off the clock, and “auto-deduct” time (and several others). The FLSA requires that nonexempt employees must be paid for all hours worked, beginning with the first principal activity of the workday to the last principal activity. “Hours worked” typically includes: (i) time spent donning and doffing work clothes or equipment; (ii) “off the clock” work, such as driving or working through lunch; (iii) “comp” time; and (iv) “volunteer time.” If you believe your employer shortchanged your work hours, please contact us today.
  11. I get Comp Time instead of overtime. Is this legal? Giving “comp time” instead of cash wages for overtime is generally illegal. If your employer gives you comp time instead of cash wages for overtime, you may have an FLSA claim. Please contact us for a free claim evaluation.
  12. I think I signed something saying I would not sue the company. Do I still have any rights? The law does not allow you to sign away your FLSA rights. So, even if you signed a waiver, it won’t be enforced.
  13. What if I don’t have all the paperwork I need? The FLSA requires that the employer maintain proper and accurate work and pay records. While proper documentation is helpful to support your claim, the law doesn’t require it. Workers who don’t have proof are permitted to give a reasonable estimate of the hours that they worked, as well as a description of their duties and/or their unpaid wages.
  14. What do I risk by bringing an FLSA claim? Nothing. We work on a contingency fee basis, meaning you never pay us anything unless your claim is paid.
  15. How do I know if I have an FLSA wage claim? Contact us for a free evaluation.  We’ve been handling labor disputes for over 25 years. Not all attorneys are familiar with employment and wage/hour law.