The Fair Labor Standards Act (“FLSA”) requires covered employers to pay their employees minimum wage for all hours worked and one and one-half their regular rate of pay for each and every hour worked over forty (40) hours in a work week. For employees whose normal pay is not based upon an “hourly” rate, their regular rate requires calculating all of their compensation into an hourly rate. Certain incentives, such as commissions and non-discretionary bonuses, may also need to be considered when calculating the overtime rate.
Regardless of whether employees receive their wages through a salary, an hourly rate, a draw, a piece rate, straight commissions or a combination of these or other types of pay, the FLSA requires covered employers to pay overtime wages for each and every hour worked over forty (40) in a work week.
Am I entitled to overtime?
The FLSA entitles every employee to time and a half for hours worked over 40 in a workweek unless the employee is specifically exempted from the overtime provisions. Most workers are entitled to overtime, yet a majority of employers are not properly paying employees for all hours worked.Many employers are improperly categorizing employees as “exempt” employees and not paying overtime. You are entitled to overtime unless your employment situation meets very stringent requirements. Some of these are discussed below, but our firm will review your situation and determine whether you might have an overtime claim. Depending on the circumstances, an employee can go back in time as far as three years to recover unpaid overtime wages.
Do I Have an Overtime Case?
First, our lawyers will assess your individual situation to determine if you have unpaid wages according any of these common mistakes employers make:
- Failing to pay at least the minimum wage on an hourly basis for the first 40 hours worked in a week
- Failing to pay the 150% premium for overtime
- Denying overtime wages because you did not get the hours “approved” in advance
- Misclassifying you as “exempt” from overtime
- Making you sign a document that “waives” your right to overtime
- Having you work “off the clock” resulting in overtime
- Deducting pay for your meal break even when you work through the break
- Failing to pay overtime for sales commissions
Second, we will work with you to determine if you may be exempt from the FLSA overtime laws. The so-called “white collar” exemptions are the most common. Employees employed as bona fide executive, administrative and professional employees are exempt from the overtime pay requirement if they meet certain tests regarding their job duties and are paid on a salary basis at least $455 per week. Other examples of exempt employees include, but are not limited to:
- Outside sales employees
- Certain commissioned employees of retail or service establishments
- Employees of certain seasonal amusement or recreational establishments
- Auto, truck, trailer, farm implement, boat, or aircraft salespersons, parts-clerks and mechanics employed by non manufacturing establishments
- Railroad and air carrier employees, taxi drivers, certain employees of motor carriers and local delivery employees paid on approved trip rate plans
- Casual babysitters and persons employed as companions to the elderly or infirm
- Domestic service workers who reside in their employers’ residences
- Farm workers
There is a common misconception that salaried employees are automatically exempt from overtime. This is not always the case. FLSA regulations on exemptions are complex. For example, calling someone a manager or assistant manager does not mean that they are automatically exempt. Your job duties are the key to determining whether you are exempt or non-exempt.
Common FLSA Overtime Violations
- An employer pays you straight-time for all hours worked, including overtime hours.
- An employer tries to pay you a fixed weekly sum as compensation for overtime pay. This payment does not qualify as overtime pay. Even if this amount is more than the employee would be paid on a per hour basis, this is still a violation of the FLSA .
- An employer states that an employee’s salary is compensation for overtime pay. In most cases, non-exempt salaried employees must receive overtime pay in addition to the salary.
- An employer pays a bonus in lieu of overtime pay. A bonus cannot be considered compensation for overtime pay. Unless the bonus is compensation for each hour worked, it does not constitute overtime pay.
If you believe that you have an overtime or other wage and hour claim, contact Atlanta overtime and minimum wage lawyer Paul Sharman at our office, anytime, at (678) 242-5297 for a free, no obligation consultation to determine if you have a potential claim or use our convenient email form.