Employment Law Attorneys
Employers can save significant amounts of money by classifying employees as “exempt” and thereby not having to pay them overtime. Unfortunately, many employers misclassify employees for that reason — taking advantage of their employees’ hard work without having to pay overtime wages.
At Bohrer Brady LLC, we represent employees in a wide range of wage and hour claims, including those involving misclassification. Our attorneys understand that your employee classification is based on what you actually do, not your job title. We are prepared to stand up for your rights in this important legal matter.
Contact us today to arrange a free consultation with an experienced employee misclassification lawyer. We represent clients nationwide.
Misclassification: Exempt Vs. Non-Exempt
Exempt employees are paid a salary. Non-exempt employees are paid an hourly wage. Common examples of exempt positions include managers, professionals, administrators and other positions in which the employee manages the work of others, interprets company policy or has authority over his or her work.
Non-exempt employees are typically supervised and are charged with such duties as:
- Producing products
- Operating machinery
- Administrative work
- Making deliveries
- Driving vehicles
- Running a cash register
Oftentimes, companies will give an employee a title such as “assistant manager” and classify that employee as exempt. If the employee does not obtain any real managerial responsibilities and remains responsible for activities similar to those named above, it may be a case of misclassification and that employee may be owed unpaid overtime wages.
If you think your employer may be exploiting you through misclassification, our lawyers are here to help you explore your rights and options.
Unpaid Overtime and Wage Hour Claims
Have you been paid for the overtime you have worked or all the wages you have earned? Many employers require employees to work off the clock or misclassify workers as salaried to avoid paying overtime. If you have questions about your rights to overtime pay or unpaid wages, talk to the lawyers at Bohrer Brady LLC.
We are here to help you. No fee unless we collect for you.
You have rights under the Fair Labor Standards Act (FLSA), a federal law that protects workers. The FLSA requires that certain workers receive time and a half for hours worked over 40 per week, even if the employer claims the work is unauthorized, and also requires that workers be paid for all time spent on the job, including participation in safety meetings, putting on or taking off uniforms, putting away tools, and other work-related activities.
Companies often pay their employees salaries to avoid overtime pay. Being paid a salary does not automatically mean you are not entitled to overtime. Some salaried workers are “misclassified” and should be paid by the hour. If you participate in work-related activities and are not paid, or you were salaried, but work overtime, you may have legal rights to recover.
Companies often misclassify workers as Independent Contractors when the worker is legally an employee and eligible for overtime. Employers also often pay a day rate and per diem to workers. Payment of day rates or per diem does not eliminate entitlement to overtime.
- Are you entitled to overtime? Under the FLSA, a worker is either exempt or non-exempt. Non-exempt workers who are entitled to overtime are generally “blue collar” workers, manual laborers, licensed practical nurses, paramedics, or others who perform non-technical, routine duties with little or no supervisory authority or discretion. Whether someone is exempt or non-exempt is very difficult to analyze. A detailed factual description of the job is necessary to make a determination. Many companies improperly classify employees as exempt to avoid paying overtime.
- These are examples of positions or industries where workers may be misclassified and entitled to overtime: assistant managers, manager trainees, cable installers, call center employees, computer/IT/CAD designers or engineers, drivers, field service technicians, field engineers, independent contractors, inventory taker, recruitment consultants and retail store employees.
- Do all non-exempt workers get overtime? If you are non-exempt and work in excess of 40 hours per week, you are entitled to overtime. Overtime is time and one-half for all hours over 40. Only government employees can be paid comp time, leave time, or other substitutes for overtime pay.
- Are salaried workers entitled to overtime? We would have to analyze your particular job to determine whether you are non-exempt. Examples of improperly classified employees are assistant managers, assistant manager trainees, entry level and mid-level management with very little supervisory responsibilities, supervisors who perform manual labor, clerical workers, bill collectors, and a host of other employees who do not perform supervisory work or exercise discretion.
- What is classified as work time? Work is generally any labor or effort that benefits the employer. Many companies require employees to participate in company activities for no pay. Some examples are pre-work meetings, Saturday meetings and safety training. The FLSA may require that you be paid for this participation even though many companies expect you to attend or participate for free. The law requires that you are to be paid for all work time.
- You may be entitled to overtime for working “off the clock.” You may be entitled to pay for these activities: use of automatic time clock systems, putting equipment or uniforms on before work, taking uniforms off or putting equipment away after work, staying after work to divide tips, count registers, or cleaning the premises.
- Can my lunch period be deducted? Generally, lunch time of a half hour or more, provided you are free to leave the work site and are not subject to call to work, is deductible. However, if you stay on the premises, are subject to call during your lunch break or are frequently interrupted by work related activities, your lunch period may be considered work and you may be entitled to be paid.
- If I take work home, is it considered compensable? If you perform work at home, either with or without your company’s specific authorization, you may be entitled to pay. Examples of working at home are doing paperwork, answering emails, returning calls, or other work for your job. If your employer knew or should have known that you worked at home, you may be entitled to be paid.
- Can my company deduct break time from my pay? Generally, breaks that are twenty minutes or less are considered work time and you should not be deducted.
- What if I am required to be “on call?” Usually, stand by or on call time is payable only in situations where the company imposes restrictions on your movements and activities, you have a very short report to work time, and you are frequently called to work.
- Are Independent Contractors entitled to overtime? Many companies hire workers as independent contractors. However, the law may consider you an employee and you may legally be an employee and entitled to overtime if the company controls when and where you work and what you do, or provides your tools and materials, or prevents you from working for other people or businesses. Examples of “independent contractors” who legally may be employees and entitled to overtime include welders, truck drivers, painters, carpenters, laborers, mechanics, and telecommunications repairmen.
- What deductions can my employer make from my pay? Depending on the state you are in, your employer may not be able to deduct things such as training costs, uniforms, tools, retirement contributions, or wage garnishments. Under the FLSA, deductions cannot result in your pay falling below minimum wage.
- What if I receive tips? In some circumstances, you are entitled to receive all of the tips left by a customer. If your employer is deducting part of your tips, you may be entitled to pay.
- Can I be fired for asserting my rights? The FLSA contains a specific provision that prevents retaliation. This means the company cannot legally take any action against you for asserting your rights under the Fair Labor Standards Act.
- What are my rights and remedies? If you are not paid overtime or minimum wages as required by the law, you may recover:
- Back pay for all amounts owed but not paid;
- Liquidated or double damages;
- In some cases, your legal costs and attorney fees;
- You can bring a lawsuit for yourself and a “collective action” for other workers;
- Your lawsuit must generally be filed within two years and, in some cases, three years.
Immigrant and Farm Workers
Immigrant and farm workers, whether documented or undocumented are covered by the FLSA. Sometimes, farm workers are required to work off-the-clock before or after their shifts putting on and taking off uniforms, or otherwise preparing for work. This time may be payable.
Oil Field Workers
We represent oil field workers in unpaid overtime lawsuits. Oilfield workers who are required to attend pre-tour safety meetings, fire drills, company meetings, or other activities, either on land or offshore, before the start of their work shift may be entitled to overtime pay.
Workers Mislabeled as Independent Contractors are Entitled to Overtime Pay
You may be entitled to overtime pay under the Fair Labor Standards Act (FLSA) even if you are labeled as an “independent contractor.” The question is whether you are truly “independent,” or whether you are an actual employee of the company. Employees are entitled to overtime, “independent contractors” are not.
An “independent contractor” is a person engaged in his own business. An employee is one who “follows the usual path of an employee” and is dependent on the business that he serves. There is no simple answer to whether a person is an employee or an independent contractor. Each situation requires a factual analysis. The Economic Reality Test gives some guidance on whether a person is an employee or an independent contractor:
- If and how much of the individual’s work is a major part of the employer’s business (Does the worker play an integral role in the business? Does he perform the primary type of work that the employer performs?)
- The permanency and length of the relationship between the employer and worker (How long has the worker worked for the same company?)
- The amount of the individual’s investment in facilities and equipment of the business (Is the worker reimbursed for expenses, tools, supplies, etc? Does the worker use his or her own tools or equipment?)
- The degree the worker is controlled by the business (Who decides the schedule? Who is responsible for quality control? Does the individual work for any other company? Does the worker have a separate business site?)
- The worker’s opportunities for profit and loss (Does worker purchase own insurance or bonding? Can the worker earn a performance bonus?)
- The degree of skill needed to perform the job (Does the position require little or no training, or is the position highly skilled?)
If it is found that a business exercises sufficient control over the worker and thus an employer-employee relationship exists, the worker is entitled to the protections under the FLSA, including overtime pay for every hour worked over 40 in a work week.
Are day-rate employees entitled to overtime pay?
Yes, in most cases. The Fair Labor Standards Act (FLSA) permits an employer to pay non-exempt employees on a day rate basis, but the day rate cannot include or build in overtime pay. 29 C.F.R. § 778.112; 29 C.F.R. § 778.310; 29 C.F.R. § 778.500. Thus, an employee must be paid overtime for every hour worked over 40 hours in a work week. The following is an example of how day-rate overtime is calculated:
John is a non-managerial employee working in the oilfield. He is paid a day rate of $200 and works 50 hours/week, seven days a week. John would be entitled to $140/week in overtime pay.
- $200 (day rate) x 7 (days worked) = $1400
- $1400 (weekly pay) ÷ 50 (hours worked) = $28/hr regular pay
- $28 (regular pay) x 1.5 (overtime rate) = $42/hr overtime rate
- $42 (overtime rate) – $28 (already paid) = $14/hr unpaid overtime
- $14 (unpaid overtime) x 10 (overtime hours) = $140 overtime owed
- $140 (overtime owed per week) x 156 weeks (3 years) = $21,840
If an employer does not correctly pay an employee overtime, the employer can be held liable for liquidated damages (double the amount owed), attorney’s fees and costs. 29 U.S.C. § 216. An employee can recover up to three years of pay if the violation was willful. 29 U.S.C. § 255.
If you were paid a day rate but not overtime, contact Bohrer Brady LLC for a free initial confidential consultation. You may be entitled to damages.
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