Unpaid Overtime FAQs
Am I 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.
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.
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.
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.