Unpaid Overtime

Whether you are eligible for overtime pay is not up to your employer; it is governed by the Fair Labor Standards Act, 29 U.S.C. §201, et seq, (FLSA). The FLSA requires employers to pay their employees at a rate not less than one and a half times their regular rate when they work more than forty hours in a workweek, unless they fall within a recognized exemption. 

COMMON OVERTIME VIOLATIONS COMMITTED BY EMPLOYERS: DO ANY OF THESE APPLY TO YOU? IF SO, PLEASE CALL OR MAKE AN INQUIRY THROUGH THE WEBSITE

• Your employer pays you a salary and does not pay you when you work over forty hours. Just because you are paid a salary does not mean you are exempt from overtime pay. Whether you are entitled to overtime depends on your job duties and responsibilities. For instance, if you do not have the authority to hire and fire employees, you may be entitled to unpaid overtime.

• Your employer unlawfully claims you are an independent contractor. Employers regularly claim their employees are independent contractors to avoid paying overtime, employment taxes, workers’ compensation insurance, and unemployment insurance. Your employer cannot simply call you an independent contractor to avoid federal and state legal requirements. If the characteristics of your job resemble those of an employee and not an independent contractor, then the agreement would not be enforceable, and you may have a claim for overtime compensation as well as other damages.

You are likely an employee and NOT an independent contractor if:

• You work exclusively for your employer;
• Your hours are fixed by your employer;
• Your wages are set by your employer;
• Your employer supervises and controls your work;,
• You work exclusively at the employer’s place of business;
• Your employer provides you with the necessary equipment, materials, and tools to do your job;
• Your employer maintains employment records for you;

• You perform work during your unpaid meal break. You may have a claim even if your employer did not ask you to work during your meal break if your employer had knowledge that you were performing work. The FLSA requires employers to exercise their control and ensure that work is not performed during unpaid meal breaks.

• Your employer only pays your regular rate, not time and a half when you work over forty hours.

• Your employer requires you to perform work at the beginning or end of the shift that you are not paid for. For instance, your employer requires you to arrive 15 minutes before your shift starts to prepare for work, but does not compensate you for this time.

• Your employer fails to pay you for your attendance at required job-related training programs, lectures, seminars, meetings, or similar activities.

• Your employer fails to pay for the time you spend traveling to a special assignment at another location, travel that keeps you away from home overnight, or travel from job site to job site during the workday. While ordinary travel from home to work on a regular workday is generally not compensable, travel outside your normal work assignment is generally compensable. If you are unsure whether your travel time is compensable, please contact us by phone or submit an inquiry through our website.

• You “volunteer” to work and not get paid. If the employer knows you are “volunteering” and permits this, it could be a violation.

• Your employer provides “comp time” instead of paying you overtime. This is only permitted if your employer is a public entity, and it is subject to several restrictions. The FLSA allows a public agency to pay compensatory time off (“comp time”) in lieu of overtime compensation, as long as the employee receives the comp time at a rate of one and a half times the employee’s regular rate of pay. There are other caveats as well. After the employee has accrued 480 hours of comp time, if employed as a public safety officer, or 240 hours of comp time if they are a regular employee, they must be paid time and a half for anything above those thresholds.  Also, employees must be paid all their comp time if they resign or are terminated.  Additionally, the employee must be permitted to use the comp time within a reasonable time after making a request to use it.  The employer can only deny an employee’s request to use their compensatory time if its use would unduly disrupt the agency’s operations.

• Your employer takes unauthorized deductions from your wages.

• Your employer requires you to work “off the clock.”

WHAT IF THERE ARE NO RECORDS TO PROVE YOU WORKED OVERTIME?

Even if there are no records of your overtime hours or your employer’s records are inaccurate, this does not negate your claim for overtime.  The FLSA requires employers to keep accurate records of their employees ‘ time. If your employer is not keeping track of your overtime, you should document the overtime hours you work.  However, even if you did not keep independent records of your overtime, you may still have a claim.

In situations where no records exist, courts have held that the employee has the initial burden to prove that they performed work for which they were improperly compensated.  This can be established by your testimony alone or even with your handwritten notes. If the employee produces sufficient evidence to show they worked over forty hours and were improperly paid, the burden shifts to the employer to produce evidence drawn from the employee’s evidence. In other words, your employer is required to produce evidence to refute your claim.