Frequently asked questions about overtime and other wage claims
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- I believe that my employer has altered my timesheet, what should I do? If you believe that your employer is illegally altering your hours in any way, you should seek to establish proof and obtain legal help to hold your employer accountable. There are a number of ways that you can establish proof in these scenarios, such as obtaining testimony from other employees, documenting your own hours and then proving discrepancies, or catching your employer in the act as they alter any documents. For all of these situations, it is best to have legal advice so you know what forms of proof will hold up in court, and therefore what forms of proof you should pursue.
- My employer routinely makes me do additional tasks after I have clocked out, is there anything I can do? Employers cannot force employees to do any work off the clock, and you are entitled to pay for any and all work that you complete for your employer. Many employers try to save money by asking for additional duties to be performed after employees have already clocked out, which is an illegal practice under the Fair Labor Standards Act (FLSA) and punishable by law. If your employer is currently using this practice on you or other employees, you should make an FLSA claim and contact an attorney to help you gain proof and file your action.
- What wage protections do workers have? There are a number of federal laws in place that protect workers and their wages. The most important of which is the Fair Labor Standards Act, or FLSA, which establishes minimum wage and overtime pay among other standards and how they affect part-time, full-time, and independent contractors in the private sector and in government positions. The Wage and Hour Division of the U.S. Department of Labor enforces the laws and standards set out by the FLSA and ensures that workers that report their employers for violating these laws are legally protected and do not risk losing their jobs.
- What is a nonexempt worker and how does that status affect overtime? Nonexempt workers are workers who are guaranteed overtime pay under the Fair Labor Standards Act (FLSA) and who must be paid time and a half for every hour they work over forty hours in a given week. There are a few job positions that are “exempt” from overtime pay, including administrative and other high position jobs. To be exempt from overtime, you must have a salaried job, though some salaried job positions are still entitled to overtime compensation. If you are being paid hourly, you cannot be exempt from overtime pay, and any attempt on the part of your employer to tell you otherwise is likely incorrect information.
- How do employers get out of paying their workers proper overtime compensation? Employers can cheat their employees out of their overtime pay in a variety of ways. They may wrongfully classify an employee as exempt when they are a nonexempt employee or tell salaried employees that they are not entitled to receive overtime pay when they are. Employers may demand that certain job duties happen “off the clock” or designate employees as “independent contractors” when they really work for the company. These tactics and a number of others are illegal and these employers should be held responsible for their actions and made to pay their employees the compensation they deserve.
- What is the difference between compensatory time and overtime? Compensatory or “comp” time is the practice of allowing employees additional time off when they work over 40 hours per week instead of paying them overtime. In most cases, it is illegal for employers to offer comp time in place of overtime, and many employers use comp time as a way out of paying their employees their fair and earned overtime wage. There are a few instances where comp time is legal, but it depends on the laws of the state where you live, the type of place you work, and your status as an exempt or nonexempt employee.
- How do employers try to avoid paying overtime wages?
In order to save money for their company, employers often use specific strategies and tactics to avoid paying workers overtime wages. While there are numerous ways employers try to avoid providing overtime pay, some tactics have become very common. One trick that employers use frequently is to misclassify workers as independent contractors, which illegally makes the employer exempt from providing this individual with overtime wages. Another common tactic is not to calculate time spent on required “off-the-clock” tasks into an employee’s paycheck. Employers will also simply underreport the hours of an employee in order to avoid paying overtime wages. The examples discussed here are only a few of the strategies employers use to deny workers overtime wages.
- What constitutes overtime hours?
Overtime hours are any hours past 40 that an employee works in a week. Under FLSA laws, employers are required to provide non-exempt employees with no less than 150% of their normal hourly wage for every hour of overtime work. If you believe your employer is cheating you out of the wages you have rightfully earned, do not hesitate to contact Williams Kherkher. Contact our offices today by calling (888) 262-9002 to speak with an experienced wage claim attorney.
- What should I do if I think I am not being properly compensated for overtime work?
If your employer is failing to pay you for your overtime work, you may be able to hold them accountable under the Fair Labor Standards Act (FLSA). It is wise to contact a wage claim attorney who can provide you with all your legal options. The process of filing a wage claim can be complicated and daunting, but a knowledgeable lawyer will be able to assess your situation and make the process much easier. Your chances of receiving the compensation you deserve will be much greater with a tough attorney fighting on your side.
If you have any additional questions, please contact Williams Kherkher at (888) 262-9002 today.