Unpaid Overtime FAQ

Answers to Frequently Asked Questions

When is overtime pay due?

Overtime pay (one and one-half times the regular hourly rate received) is due an employee after 40 hours of work in a workweek. Special exceptions apply with respect to certain professions and positions, such as police officers, managers, and hospital and nursing home employees. For more information about common abuses in listed professions and positions, see OvertimeScams.us. An employer can be subject to both federal and state overtime laws because some states have passed overtime laws in addition to federal law. Employees in those states are due the higher amount. For a summary review of all states’ minimum wage and overtime laws, see StateOvertimeLaw.us.

How is severance pay calculated, and when is it due?

Severance pay is not regulated. A right to severance pay must be agreed upon by both the employee and employer prior to beginning employment. Otherwise, a fired employee is not due severance pay. To learn more about severance and age discrimination claims, seeAgeRights.com.

How are vacation pay, sick pay and holiday pay computed, and when are they due?

Vacation, sick, and holiday pay are not federally regulated. Payment for time not worked must be agreed upon between employer and employee prior to employment.

Is extra pay required for night or weekend work?

Extra pay for night or weekend work must be agreed upon by the employer and employee since it is not federally regulated. However, if more than 40 hours are worked within the workweek, the employer must follow overtime regulations.

When are pay raises required?

Wage-and-hour laws do not cover pay raises. Pay raises are controlled by employers and not by law unless the minimum wage for the U.S. or a state is increased. The Fair Labor Standards Act (FLSA) does not require pay raises to be over the minimum wage. Pay raises must be agreed upon by employer and employee.

Can an employee be required to perform work outside the employee’s job description?

An employer may require employees to perform duties outside their job description unless they are under the age of 18. In general, there are no federal restrictions on the types of work employees over the age of 18 can do.

I am classified as an independent contractor. Am I entitled to overtime pay?

Most commonly, an independent contractor is a person who works for more than one company at a time and fully controls her own work. Generally, independent contractors are not employees of any one company and are not entitled to overtime pay. See Independent Contractor, Mortgage Broker, Show-up Time at OvertimeScams.us.

Are salaried employees exempt from overtime pay?

Generally, salaried employees are due overtime pay. There are several exceptions to this rule, including commissioned sales employees, computer programmers, executive, administrative, professional or outside sales employees, physicians, truck drivers and union employees (with certain restrictions), all of whom are generally exempt from overtime pay. See OvertimeScams.us for a more detailed review by job description, title, and industry.

How do I prove that my employer knew or had reason to believe that “off the clock work” was being performed?

An employer is held responsible for her employee’s actions, regardless of whether or not the employer knew what the employee was doing. Employers must keep detailed time records. An employer can be liable even without actual knowledge of the work being performed because employers are able and have a reasonable opportunity and duty to inquire as to what the employee is doing after hours at work. But if the employee hides her actions from the employer, the employer may not have to pay overtime.

What if I did not seek approval for overtime? Am I still entitled to that pay?

Whether or not approval is sought, if an employer knows that more than 8 hours a day were worked by an employee for a total of more than 40 hours in a workweek, that employer is required to pay overtime.

When is “double time” due?

Double time is not federally required. An agreement between employee and employer must include a provision for “double time” in order for the employee to receive it.

Can compensatory time be substituted for cash due to overtime?

Compensatory time (“comp time”) is applicable to government employees and cannot be substituted for overtime pay. The FLSA generally does not permit “comp time” to be substituted for cash in overtime cases. See Comp Time, Bonus and Shift Pay, Incorrect Rate of Pay.

What is the workweek standard?

A workweek is designated by seven (7) consecutive days of work and is the basis for calculating overtime pay. Hours worked during the workweek cannot be averaged between more than one workweek. Each workweek stands alone. However, specially listed professions, such as medical-care employees, police officers, and fire fighters, are permitted to be paid on special “alternative work periods.” See Police, Firefighters, EMS & Rescue Personnel.

Does the FLSA guarantee any particular amount of work time?

The FLSA does not guarantee any set amount of work time. Federal law does not set a particular schedule of work. An employer can lawfully “adjust schedules” within a workweek to avoid paying overtime to employees.

How can I enforce my FLSA rights?

If you want to sue, it is best to hire an attorney with knowledge and experience in employment law. Keep a record of your employer’s actions and she is not following federal labor guidelines. You may also contact the U.S. Department of Labor (DOL) and discuss your employer’s actions. The DOL does not always prosecute a case, even though it may have investigated a claim.

Can an employer fire an employee if she sues for unpaid wages?

An employer cannot legally fire an employee or retaliate against her if she sues for unpaid wages. Common examples of retaliation include blacklisting employees who have made FLSA claims, refusing to hire applicants who have made FLSA claims at a previous employment, firing relatives of the employee, reducing job responsibilities, assigning the employee to unpopular job duties or shifts, disciplining the employee out of proportion to past disciplinary practices, refusing raises, or lowering performance evaluations.

If I have an FLSA claim, what time period does it cover?

The FLSA will only allow payment recovery beginning two (2) years prior to filing the complaint in court. If the employer knowingly disregarded federal regulations, the FLSA will require payment be made beginning three (3) years prior to filing the complaint in court. Giving a complaint to an employer, or the Department of Labor, is not the equivalent of filing a complaint in court.

Do all “similarly situated” employees have to participate in an FLSA suit if one employee decides to prosecute her employer?

No. Those employees “similarly situated” may file an FLSA suit together as a class action. However, if the employees win the suit, those employees who did not join in the suit would not be entitled to the benefits of any judgment. “Similarly situated” is a legal standard.

I got a severance agreement and/or signed a waiver saying I would not sue the company. What rights do I have?

All private employees have the right to minimum and overtime wages even if they signed a waiver. Therefore, for overtime purposes, employees who sign a waiver or a severance agreement have the same rights as if they hadn’t signed anything at all. In most cases, only waivers supervised by the DOL or obtained in a private lawsuit can eliminate an employee’s rights. Certainly, see an attorney before signing any document that waives your rights. But even if you have already signed a document in exchange for severance pay, ask an attorney to review it. Experienced employment attorneys routinely perform this task in their practice. Even though a consultation fee may be charged, often the fee is not as large as you might think. The attorney will then let you know what rights, if any, you still possess. Employers often overlook important details and leave open certain opportunities for employees to receive pay due under federal law.

What are liquidated damages?

Liquidated damages are unpaid back wages, possibly resulting in double the unpaid amount. Employees are generally entitled to liquidated damages and can receive them through a lawsuit against the employer.

How do employees pay their FLSA lawyer if they cannot afford one?

Paying an FLSA lawyer is between you and your attorney. Some FLSA lawyers work on a “contingency fee” basis where they collect payment after judgment in the case. Usually, a “contingency fee” is a percentage of the awarded judgment. Suit expenses will either be paid by the client or advanced by the lawyer, depending on the arrangement. Before hiring an attorney, make sure you understand the financial arrangement completely, and obtain the attorney’s fee agreement in writing.

How long does an FLSA case take?

FLSA timelines are unpredictable, like any other type of lawsuit. Some cases can be settled out of court quickly. Other cases can take quite a long time to be brought to trial. Every case is different.

Is money recovered in an FLSA case taxable?

Yes, money recovered in a case is the same as actually having received the pay during employment.

What is the federal minimum wage?

The federal minimum wage is $5.15 per hour. In states where both state and federal minimum wage laws apply, the employee is entitled to the higher wage of the two. SeeStateOvertimeLaw.us for a review of states’ laws.

Who is eligible for the federal minimum wage?

Covered, nonexempt employees are eligible for the federal minimum wage. Employees of federal, state or local government agencies, hospital employees, school employees, and domestic workers are also entitled to the minimum wage. The FLSA contains a number of exemptions from the minimum wage that may apply to some workers.

What happens if state law requires a different minimum wage than federal law?

Where state law requires a higher minimum wage than the federal law, that state’s higher standard applies. See StateOvertimeLaw.us.