No. When you call us concerning a potential Fair Labor Standards Act claim, our initial consultation with you is always free and confidential. If we think you have a valid claim and you do hire us, we don’t ask you to pay us anything upfront. We only get paid an attorney’s fee if we succeed in obtaining a recovery.
We handle fair pay cases on a contingent fee basis, which means that we only get paid an attorney’s fee if and when we are successful at obtaining a recovery for you. We will pay the case expenses (such as filing fees, costs of depositions, experts, etc.) You do not need to pay us any money upfront at all. We take the risk that we might not win. That’s actually a good thing for you, because it means that we have no incentive to take a weak claim. One of the first things a smart lawyer learns is that taking a weak case is a recipe for disaster, because those are the ones that employers fight the hardest, and those are the ones that defense attorneys are happy to get their hands on because they can drag the case out for years. And because defense attorneys get paid by the hour every month, they have every reason in the world to drag things out.
Unfortunately, there’s no easy simple answer to this question. Every case is different. We’ve had cases that have settled in four weeks, and others that have gone on for years. How long a case takes depends on many factors, including:
If the employer pays you money to compensate you for wages you should have received but didn’t, and the wages would have been taxable as income, you will likely have to pay income taxes on your lawsuit recovery. If part of the recovery is for something other than backpay, then you might not have to. But you should speak to your accountant or tax advisor to get information and advice on that, as we do not give tax advice.
“Wage theft” is a broad term that essentially refers to an employer’s failing to pay the employee everything that the employee is legally entitled to. It’s a term or used by the general public than lawyers, because we know of no law that actually uses that term. Unfortunately, the term has become more frequently used in recent years because of a growing trend of greed among employers.
Wage theft can occur many different ways. Here are just some examples of the ways that employers sometimes steal workers’ wages:
The Fair Labor Standards Act (also called the “FLSA”) is the main federal law addressing wages and employment. To briefly summarize it, the FLSA:
While the FLSA does not technically apply to every U.S. employer, there are very few that it does not apply to. In general, the FLSA applies to any employer who:
There are very few employers who do not meet the first portion of this test, and almost every business engages in “interstate commerce.”
Although pretty much every employer meets one or both of those categories, the FLSA statute does specifically state that the law does not apply to some businesses. Those businesses include:
This term refers to an employer’s practice of mischaracterizing a position as being either “exempt” or an independent contractor. There many reasons employers may cheat this way. First, they think they can avoid paying the workers their proper pay (minimum wage and/or overtime pay). Second, the employer avoids paying the proper payroll taxes. And third, the employer may save a lot of money on their worker’s compensation insurance and other expenses.
When an employee is “improperly classified,” they are being illegally cheated out of a large amount of pay. The reality is that many employees who are legally entitled to overtime pay do not get it, because their employer has “improperly classified” them. Sometimes it’s an innocent mistake, but most times it’s not. Because this happens frequently, claims for “improper classification” backpay and penalties are fairly common. If an employee has been improperly classified, the employer must retroactively pay overtime to the employee, even if the improper classification was an innocent mistake.
In addition to being cheated out of proper pay, workers who are misclassified as “independent contractors” are also frequently being cheated out of employee benefits, such as health insurance, sick days, vacation days, ETO/PTO, etc. Those workers are also frequently lied to and told that they’re not entitled to the protections of laws like the Family and Medical Leave Act, the Americans with Disabilities Act, and other similar laws. These companies also frequently claim that they don’t have to provide worker’s compensation benefits or unemployment insurance benefits to those workers.
The law in almost every state is clear that it doesn’t matter if they had you sign a piece of paper agreeing that you actually are an independent contractor, that you’re not entitled to minimum wage or overtime pay, or anything else. That paper is frequently useless to them. Why? Because if you meet the test for being an employee, you’re an employee. Period. All that matters is the substance of your arrangement with the company, as that’s what determines whether you are an employee or not.
Because there are infinite possibilities of pay structures and arrangements, there is no simple black-and-white test for who is an employee and who is an independent contractor. Almost every state has its own list of factors that are considered in deciding who is an employee and who is an independent contractor.
The simplified way to state it is: if you get paid a certain amount per hour, you are almost certainly an “employee,” not an independent contractor. But remember that you might still be an employee even if you get paid some other way (such as commission, work output, etc.)
Though the test used to determine who is an employee vary from state to state, most of them look at these kinds of factors:
The IRS also has a lot to say about this issue, because one of the reasons employers play this game of improperly classifying workers is to avoid paying the employer’s payroll tax on wages to employees (which doesn’t apply to payments to independent contractors). This is an excerpt (with live links to sub-pages, for more details) from a page of the Internal Revenue Service’s own website (found here) about how the IRS decides the issue of whether a worker is an employee, or a true independent contractor:
Help with Deciding
To better determine how to properly classify a worker, consider these three categories – Behavioral Control, Financial Control and Relationship of the Parties.
Behavioral Control: A worker is an employee when the business has the right to direct and control the work performed by the worker, even if that right is not exercised. Behavioral control categories are:
Type of instructions given, such as when and where to work, what tools to use or where to purchase supplies and services. Receiving the types of instructions in these examples may indicate a worker is an employee.
Degree of instruction, more detailed instructions may indicate that the worker is an employee. Less detailed instructions reflects less control, indicating that the worker is more likely an independent contractor.
Evaluation systems to measure the details of how the work is done points to an employee. Evaluation systems measuring just the end result point to either an independent contractor or an employee.
Training a worker on how to do the job — or periodic or on-going training about procedures and methods — is strong evidence that the worker is an employee. Independent contractors ordinarily use their own methods.
Financial Control: Does the business have a right to direct or control the financial and business aspects of the worker’s job? Consider:
Significant investment in the equipment the worker uses in working for someone else.
Unreimbursed expenses, independent contractors are more likely to incur unreimbursed expenses than employees.
Opportunity for profit or loss is often an indicator of an independent contractor.
Services available to the market. Independent contractors are generally free to seek out business opportunities.
Method of payment. An employee is generally guaranteed a regular wage amount for an hourly, weekly, or other period of time even when supplemented by a commission. However, independent contractors are most often paid for the job by a flat fee.
Relationship: The type of relationship depends upon how the worker and business perceive their interaction with one another. This includes:
Written contracts which describe the relationship the parties intend to create. Although a contract stating the worker is an employee or an independent contractor is not sufficient to determine the worker’s status.
Benefits. Businesses providing employee-type benefits, such as insurance, a pension plan, vacation pay or sick pay have employees. Businesses generally do not grant these benefits to independent contractors.
The permanency of the relationship is important. An expectation that the relationship will continue indefinitely, rather than for a specific project or period, is generally seen as evidence that the intent was to create an employer-employee relationship.
Services provided which are a key activity of the business. The extent to which services performed by the worker are seen as a key aspect of the regular business of the company.
When an employer improperly classifies a worker as an independent contractor, the value of the claim frequently get really big, because the worker has typically been severely underpaid, and often for a long time (although, in general, a lawsuit can only go back for the statute of limitations period). See here for more details on how to tell whether you are an employee or a true “independent contractor.”
Don’t Worry If You Signed A Contract Agreeing That You’re An “Independent Contractor.” Companies frequently make people sign documents saying that, telling them that they won’t hire them unless they sign. These agreements are frequently unenforceable and meaningless. Courts generally ignore agreements like that and instead perform their own independent legal analysis to decide whether or not a person is an employee or an independent contractor, looking at many different factors, as described above. If you signed an agreement like that, don’t assume that you have already given up your rights and can’t file a lawsuit. Instead, immediately contact an attorney to help get an informed opinion about what your rights and options are.
Federal law does not answer this question, so it depends on the laws of the state where the employee was working. Some states, such as Missouri and California, require the last paycheck to be delivered on the date the employee is fired. Some other states allow longer time periods.
It’s also important to note that a different rule may apply if the employee quits, rather than being fired.
That answer this question depends on a few factors.
The first factor is what state you were employed in. Some states, such as California, have laws protecting employees’ commissions. In that case, state law would override any particular employers’ policies.
The second factor is whether or not there was a written contract or policy stating when the commissions were earned. In general, if you earned the commission before they fired you, they must still pay you that money. But it’s important to carefully and thoroughly read all of the contract and policy documents to take into consideration all the different terms and provisions. In particular, it would be important to know if there is a provision dealing with commissions after employment is terminated, and how that provision is worded.
Federal law: In general, federal law does not require that employees get breaks or time off to eat meals, such as lunch or dinner. There are exceptions to that, though. For instance, certain truck drivers must get breaks in order to comply with the Federal Motor Carrier Safety Act, designed to prevent dangerously fatigued truck drivers.
If not required by law, employers can of course choose to give their employees breaks and mealtimes. But under federal law, if the break is 20 minutes or less, the employer must pay the employee for that time as if they were working. The company does not have to pay for any time off which is longer than 20 minutes.
It’s important to note, however, that in order to take a deduction for this time, the employee must be completely off work. So if you spend 30 minutes at your desk eating a sandwich while simultaneously typing a report, the company must pay you for that entire time.
State laws: Some states have laws requiring employees to be given breaks during shifts. These vary from state to state, so it’s important to look at the particular state where you are employed.
For example, California law requires that an employer must give every employee (i) a paid rest break of at least 10 minutes every four hours and (ii) an unpaid meal break of at least 30 minutes every five hours. California law imposes substantial penalties on employers for violating those rules.
No, it doesn’t matter. The Fair Labor Standards Act makes no distinction between citizens or noncitizens, or between those who are here legally or illegally. The laws requiring payment of minimum wages and overtime apply equally to all workers, regardless of those distinctions.
In one case on that topic, a decision by a court said:
The term “employee” is broadly defined as “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). FLSA provides several exceptions to this definition, but undocumented workers are not among the exceptions.
In fact, in several other cases, United States Courts of Appeals have held that employers are not even allowed to ask about the immigration status of a person suing for back wages under the fair labor standards act, because it is completely irrelevant.
In another case involving the Fair Labor Standards Act, a United States District Court said:
Simply put, Plaintiff’s “immigration status and authority to work is a collateral issue.” . . . “Evidence of Plaintiff’s Immigration Status is inadmissible because it directly contradicts a large body of case law from numerous Circuits including District Courts within the Second Circuit clearly holding that all employees, regardless of immigration status, are protected by provisions of the FLSA.” Campos v. Zopounidis, No. 3:09-CV-1138 VLB, 2011 WL 4852491, at *1 (D. Conn. Oct. 13, 2011) (citing, Uto v. Job Site Services Inc., 269 F.R.D. 209, 211 (E.D.N.Y.2010)(citing Flores v. Amigon, 233 F. Supp. 2d 462, 463 (E.D.N.Y. 2002)); Liu v. Donna Karan Int’l, Inc., 207 F. Supp. 2d 191 (S.D.N.Y. 2002); Flores v. Albertsons, Inc., 01-cv-00515 (AHM), 2002 WL 1163623, at *5 (C.D. Cal. Apr. 9, 2002) (noting that “Federal courts are clear that the protections of the FLSA are available to citizens and undocumented workers alike”)(citing Patel v. Quality Inn So., 846 F.2d 700, 706 (11th Cir. 1988)). “While it is true that credibility is always at issue, that ‘does not by itself warrant unlimited inquiry into the subject of immigration status when such examination would impose an undue burden on private enforcement of employment discrimination laws.'” Rengifo,. 2007 WL 894376, at *3 (quoting Avila-Blum v. Casa de Cambio Delgado, Inc., 236 F.R.D. 190, 192 (S.D.N.Y. 2006)).
Ferrer v. Limpiex Cleaning Servs., No. 3:19-cv-00940(JCH), (D. Conn. Apr. 1, 2020)
This is a complex subject, in part because restaurants frequently have servers engaging in both tip-producing activities and non-tip-producing activities, such as cleaning. A lot of people involved in this situation, both employees and employers, have a lot of uncertainty about the rules here. Hopefully this brief summary of this complicated issue will help.
The FLSA specifies a broadly applicable minimum wage. (As of 2020, the federal minimum wage is $7.25 per hour.) That law requires every employer to make sure every employee receives that full minimum wage.
What Is The “Tip Credit”?
The FLSA also says that for some “tipped employees,” the employer is allowed to claim a credit towards the $7.25 per hour minimum wage for some of the tip money received by the employee. This credit towards the employer’s minimum wage requirements is called the “tip credit.”
How Much Is The “Tip Credit”?
Restaurants are not automatically entitled to the tip credit. But if the requirements for taking the tip credit are met, then the maximum amount of the tip credit the employer can take for a particular worker is the smaller of the following two numbers:
Since the maximum tip credit is $5.12 per hour, federal law requires that an employer who is entitled to the tip credit for a particular employee must still always directly pay that employee at least $2.13 per hour ($7.25 – $5.12 = $2.13).
What Are The Requirements For An Employer To Get The “Tip Credit”?
The FLSA has certain requirements that must be met for any particular employee in order for the employer to be permitted to take a tip credit against that employee’s minimum wage requirements.
In order for the employer to be entitled to the tip credit for any particular server, the United States Department of Labor (”DOL”) interprets the FLSA as requiring that all of the following elements must be met:
That last one is the biggest factor, and the biggest question. There has been much confusion, and many lawsuits, in recent years over what kinds of tasks are directly related to a tip-producing occupation, and what the limits are on other activities. The 20% limitation on non-tip-producing activities was written many years ago by the DOL in their regulations written to enforce the FLSA, and that language is not in the FLSA law itself. Because it’s not in the statute itself, some courts have taken the position that the 20% limitation is merely a guideline, and is not actually binding. Other courts have given deference to the DOL’s interpretation of the law, given the agency’s expertise in labor matter. Recently the DOL itself has revisited this issue to try to clarify its position. The following is a summary of the situation as of 2019.
An older Department of Labor publication states:
Reg. 531.56(e) permits the taking of the tip credit for time spent in duties related to the tipped occupation, even though such duties are not by themselves directed toward producing tips (i.e. maintenance and preparatory or closing activities). For example a waiter/waitress, who spends time cleaning and setting table, making coffee, and occasionally washing dishes or glasses may continue to be engaged in a tipped occupation even though these duties are not tip producing, provided such duties are incidental to the regular duties of the server (waiter/waitress) and are generally assigned to this servers. However, where the facts indicate that specific employees are routinely assigned to maintenance, or that tipped employees spend a substantial amount of time (in excess of 20%) performing general preparation work or maintenance, no tip credit may be taken for the time spent in such duties.
On November 8, 2018, the DOL issued a very dense legal letter (which you can read here) intending to try to clarify some of the confusion and hopefully give restaurants, waiters and their lawyers a better understanding of the applicable rules. That letter essentially spells out which duties the DOL considers to be “directly related” to servers’ tip-producing activities. The DOL’s list of activities is:
(That DOL’s list incorporated information which can be found here.)
That 2018 DOL letter says “no limitation shall be placed on the amount of these duties that may be performed, whether or not they involve direct customer service, as long as they are performed contemporaneously with the duties involving direct service to customers or for a reasonable time immediately before or after performing such direct-service duties. The DOL letter then refers to a 1980 decision under the FLSA concluding that a restaurant was entitled to a tip credit allowing it to pay the lower minimum wage to a server who was vacuuming the restaurant after it had closed. (Wage and Our Opinion Letter WH-502 (March 28, 1980)).
So while the law is less than crystal clear, here’s a summary of what we believe to be the state of the law as of 2020:
So, for example, if a server is required to show up at work at 10:30, but the restaurant doesn’t open till 11:30, all the work during that first hour counts toward the 20%, because you obviously can’t earn tips when the restaurant is closed. And if the first customer routinely shows up at 12, then the time from 11:30 until 12 is should also be counted toward the 20%. And if the restaurant closes at 10 p.m. but they make her stay until midnight cleaning, setting tables, etc., then those last 2+ hours also be counted towards the 20%, as well.
If you think your employer might be paying you improperly, start keeping a good accurate log of everything you do at work, how much time it takes you, and when you do it. It is not necessary to make it a super-detailed description of each and every task you perform. The only categories you need to keep track of are:
For the last category, it is a good idea to keep general track of what you did and how much time you spent on it.
Believe me, if you keep track of this information for three full weeks before your first visit to a lawyer, you will be giving the lawyer a huge head start in being able to intelligently analyze your situation, determine whether or not you have any valid claims, and if you do, helping you recover your rightful pay.
(If you’re really bored sometime and want to read the more detailed explanation from the United States Department of Labor about how the FLSA is applied to “tipped employees,” click here. That DOL letter contains a link to another website, located here, which gives the detailed list of activities summarized above. Trust me – neither one of these things is fun to read!)
Federal law does allow employers to require tipped employees to participate in a tip pool, but there are some limits on how that can work. In a tip pool, each tipped employee has to turn over a portion of their tips, and the resulting pot is then split among a group of employees.
Here are the basic federal rules that apply to tip pools:
The FLSA states that the employer can meet its minimum wage obligations by paying the employee in any combination of cash, board, lodging, or facilities. The rule is that the employer is entitled to a credit against the minimum wage for the fair value of room board and similar items provided “for the benefit or convenience of the employee.” If the items are provided for the benefit or convenience of the employer, then the employer is not entitled to the credit.
It’s sometimes a gray area as to whether or not something provided to the employee is more for the benefit of the employee or the employer. Where the primary benefit of such facilities is to the employer’s business interest, credit will be denied.
Things generally viewed as primarily for the benefit or convenience of employees include meals and lodging. But there are exceptions to this. For instance, if the employer pays for an employee’s hotel room on a business trip, that benefits the employer and is not “for the benefit of the employee” so the employer does not get a credit against the minimum wage.
Even though for most jobs it may seem obvious when the employee’s workday starts and ends, it’s frequently not so clear-cut. Many jobs have gray areas in which employers don’t properly count all work time, leading to small underpayments to an employee. But over time, these small underpayments accumulate into big numbers, especially when compounded by a company’s having a large number of employees. Situations involving even just a few minutes a day can lead to very large claims that are very worthwhile to pursue.
Generally speaking, under the FLSA an employee must be paid for time that they spend doing work that benefits the employer. Because there are so many different types of jobs, it’s impossible to create a complete list of all kinds of activities that benefit the employer and therefore must be included in the hours worked.
To help give you a better idea of what kinds of unpaid tasks we’re talking about, here’s a list of some common things that companies require employees to do but then don’t include as hours worked:
Generally speaking, if those tasks benefit the employer, and the time spent is not completely insignificant (or “de minimis,” in lawyer-speak), then you must be paid for that time. And don’t forget that if you were working a 40-hour week according to the company’s schedule (excluding this extra time), then all of this additional time must be paid not at your usual rate, but at time-and-a-half.
As far as how many minutes of time qualify as “insignificant”, courts generally have held that there is no precise amount of time that may be denied compensation, and no “rigid rule can be applied with mathematical certainty.” Rutti v. LoJack Corp., Inc., 578 F. 3d 1084 (9th Cir., 2009). As a general rule, while most courts have found periods of approximately 10 minutes to be essentially insignificant (what lawyers who speak to impress would call “de minimis”). But it varies from case to case. Here’s what the U.S. Department of Labor says about that:
Insignificant Periods of Time
In recording working time under the FLSA, infrequent and insignificant periods of time beyond the scheduled working hours, which cannot as a practical matter be precisely recorded for payroll purposes, may be disregarded. The courts have held that such periods of time are de minimis (insignificant). This rule applies only where there are uncertain and indefinite periods of time involved, a few seconds or minutes in duration, and where the failure to count such time is justified by industrial realities. As noted below, an employer may not arbitrarily fail to count any part, however small, of working time that can be practically ascertained.
In 2020, we filed a successful class action in federal court against a Missouri county on behalf of its jail guards and corrections officers. One aspect of that lawsuit alleged that the county was not properly paying employees, because they were not paying the jail guards for mandatory daily pre-shift meetings. For instance, if a guard was scheduled to work from 7:00 a.m. to 7:00 p.m., the county actually required them to show up and begin work at 6:45 a.m. by participating in a pre-shift meeting with the guards going off duty, to ensure an orderly turnover of control of the jail.
Since our clients were clearly in the right, the county knew we were ultimately going to win, and that meant that the county was ultimately going to have to pay not only the full amount of back pay to our clients, but also liquidated damages and 100% of our attorney’s fees as well. (Under federal law, the backpay would get doubled. But because we sued in Missouri and also sued under Missouri’s similar state law (called the “Missouri Minimum Wage Law”), the federal court was required to actually triple the amount of wages our clients were shorted, giving the county even more incentive to settle the case quickly.
Please note that there are exceptions to these general rules. Every case is different and every factual scenario needs to be separately analyzed. The details of your particular arrangement do matter, which is why it’s important to consult with an experienced attorney to find out if you may have a valid claim.
According to the United States Department of Labor, the following industries (shown in alphabetical order) are the most common violators of the United States fair pay laws:
While employers in those fields are the most frequent violators of the law, we’ve seen employers in many different fields underpay employees, so it’s always worth consulting an experienced attorney to find out if your particular employer is paying you properly.
This seems like a simple question, so we’ll give you a simple answer. But remember that the devil is in the details, and each case is different.
The United States Supreme Court has held that, as a general principle, worktime includes “all activities which are ‘an integral and indispensable part of the principal activities’” of the employee. See, e.g., Steiner v. Mitchell, 350 U. S. 247, 256.
But there are hundreds, if not thousands, of cases dealing with specific situations in which the parties disputed whether or not a particular activity constituted “an integral and indispensable part of the principal activities”. Some of those examples are discussed in other portions of these FAQs, so read on if you want to find out more about those issues.
Under the “continuous workday” rule, the “workday” is generally defined as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” The “continuous workday” rule was adopted by the United States Department of Labor under the authority given to that department by the Fair Labor Standards Act, as amended by the Portal-to-Portal Act of 1947.
This is important because some companies require employees to do certain things without paying them for those tasks. As a general principle, under the continuous workday rule, once the employee has started work, they must remain on the clock until the end of the workday, and the employer is not allowed to cut out portions of the day unpaid (other than meals and breaks).
For example, in IBP v. Alvarez, 126 S.Ct. 514 (2005), the United States Supreme Court decided a case involving a meat and poultry processing plant. The workers sued the employer (Iowa Beef Processing, which later changed its name to Tyson), claiming that the company wasn’t paying them for all of the time they worked. The company required the employees to:
IBP didn’t pay the employees for any of that time, and only paid them for the time once they got to the workstation, wearing their safety gear and ready to work.
The United States Supreme Court held that because “donning” and “doffing” gear is “integral and indispensable” to the employees’ work, it is a “principal activity” under the FLSA, so each employee’s workday started when they were donning the gear. The Supreme Court then reasoned that under the “continuous workday” rule, since the employees’ workday began when they were donning the gear, the employer cannot “take them off the clock” during the long walk out to the production floor, so the employer must pay them for that time, too.
It’s important to understand these concepts because they apply generally, even to employees who might not wear safety equipment, and you might be entitled to more pay than you’ve been receiving under the proper application of these rules. For example, in general, it is proper to not pay an employee for time spent driving to work in an employer-provided vehicle. The general rule is that commuting is not worktime. But if the employer’s rules require the employee to do certain things to benefit the employer before the employee leaves her house, then doing those things starts the workday and under the “continuous workday” rule the employer must pay the employee for the travel time.
Here’s an excerpt from an official United States Department of Labor publication talking about travel time:
Time spent by an employee in travel as part of his principal activity, such as travel from jobsite to jobsite during the workday, must be considered as hours worked. An employee who travels from home before the regular workday and returns home at the end of the workday is engaged in ordinary home-to-work travel. This is not considered hours worked. See Regulations 29 CFR 785.33.
Example
A licensed practical nurse (LPN) works at an assisted living facility which has a “sister facility” 20 miles away. There have been times that the LPN has been asked to fill in for someone at the other facility after she completes her shift at her normal work site. It takes her 30 minutes to drive to the other facility. The travel time is not recorded on her time sheet.
Is this a violation of the FLSA? Yes. The travel time must be considered part of the hours worked.
That official US government webpage can be found here.
Yes. While it’s great if you have all of those records, it’s not a dealbreaker if you don’t. Why? Because the FLSA requires the employer to create and maintain accurate time records going back three years. So if you don’t have them we can still get them from the company. While they do not have to give those records to you, we can use the court system to force them to turn them over to us.
When a company fails to keep accurate timekeeping records, the law will usually fill in the gaps with assumptions which are favorable to the employee, and unfavorable to the employer, so as to make sure the company doesn’t benefit from breaking the rules.
In general, a company is only allowed to “round” employees hours if their rounding is fair and does not consistently benefit the company or work against an employee. Here’s an excerpt from an official United States Department of Labor publication talking about this issue:
Rounding Hours Worked
Some employers track employee hours worked in 15-minute increments, and the FLSA allows an employer to round employee time to the nearest quarter hour. However, an employer may violate the FLSA minimum wage and overtime pay requirements if the employer always rounds down. Employee time from 1 to 7 minutes may be rounded down, and thus not counted as hours worked, but employee time from 8 to 14 minutes must be rounded up and counted as a quarter hour of work time. See Regulations 29 CFR 785.48(b).
Example #1:
An intermediate care facility docks employees by a full quarter hour (15 minutes) when they start work more than seven minutes after the start of their scheduled shift. Does this practice comply with the FLSA requirements? Yes, as long as the employees’ time is rounded up a full quarter hour when the employee starts working from 8 to 14 minutes before their shift or if the employee works from 8 to 14 minutes beyond the scheduled end of their shift.
Example #2:
An employee’s schedule is 7 a.m. to 3:30 p.m. with a thirty-minute unpaid lunch break. The employee receives overtime compensation after 40 hours in a workweek. The employee clocks in 10 minutes early every day and clocks out 7 minutes late each day. The employer follows the standard rounding rules. Is the employee entitled to overtime compensation? Yes. If the employer rounds back a quarter hour each morning to 6:45 a.m. and rounds back each evening to 3:30 p.m., the employee will show a total of 41.25 hours worked during that workweek. The employee will be entitled to additional overtime compensation for the 1.25 hours over 40.
Example #3:
An employer only records and pays for time if employees work in full 15-minute increments. An employee paid $10 per hour is scheduled to work 8 hours a day Monday through Friday, for a total of 40 hours a week. The employee always clocks out 12 minutes after the end of her shift. The employee is paid $400 per week. Does this comply with the FLSA? No, the employer has violated the overtime requirements. The employee worked an hour each week (12 minutes times 5) that was not compensated. The employer has not violated the minimum wage requirement because the employee was paid $9.75 per hour ($400 divided by 41 hours). However, the employer owes the employee for one hour of overtime each week.
That official US government webpage can be found here.
It is usually a red flag when a company always pays its employees an even, exact number of hours (such as “40.0”, or “25.0”). While it is possible that that could happen with a legal rounding system, it is very unlikely that an employer complying with the FLSA would consistently have those results.
The short answer is: it depends on where you live. While there is no federal law that requires a company to give an employee access to their personnel file, some states have passed laws that do give employees certain rights to see some or all of their personnel file. While a detailed description of each of those laws is too detailed for us to put on this website, here is a list of some states which as of this writing give employees the right to see at least some portions of their personnel file:
Under the Fair Labor Standards Act, if your employer violates the law and underpays you, they owe you twice the amount of the underpayment. And that’s in addition to the other things that the FLSA requires them to pay (such as all of your reasonable attorney’s fees and expenses).
Instead of the double damages the FLSA authorizes, some states have adopted similar laws that give employees triple damages. (In legal-speak, that’s called “treble damages”, because lawyers refuse to speak plain English, so we can look smart). One example is Missouri’s “Minimum Wage Law.” Missouri Statute § 290.527 says that if your employer underpays your wages in violation of that law, you can sue them and force them to pay you three times that amount:
290.527. Action For Underpayment Of Wages, Employee May Bring — Limitation.
Any employer who pays any employee less wages than the wages to which the employee is entitled under or by virtue of sections 290.500 to 290.530 shall be liable to the employee affected for the full amount of the wage rate and an additional amount equal to twice the unpaid wages as liquidated damages, less any amount actually paid to the employee by the employer and for costs and such reasonable attorney fees as may be allowed by the court or jury. The employee may bring any legal action necessary to collect the claim. Any agreement between the employee and the employer to work for less than the wage rate shall be no defense to the action. All actions for the collection of any deficiency in wages shall be commenced within three years of the accrual of the cause of action.
(It may look confusing because it uses the word “twice”, but if you read it carefully it says they have to pay you a sum equal to (i) the amount they shorted you plus (ii) an extra payment of twice that amount, so the total amount they have to pay is three times the amount they shorted you.)
The Fair Labor Standards Act (and many similar laws passed by various states) says that if your employer violates the law and underpays you, in addition to paying you twice the amount that they cheated you out of, the court is required to make them also pay your reasonable attorney’s fees and expenses. The legislators who wrote these laws inserted these kinds of provisions for two reasons. First, they did it to encourage lawyers to get involved in these cases even if they involve small dollar amounts. Second, they did it to make sure that the employee makes a full recovery, and doesn’t have to pay for their attorney’s fees and expenses out of the wages they recovered.
Unfortunately, there’s no simple black-and-white answer to this question, because it’s very fact-sensitive. Generally speaking, the company does not have to pay you for time you spend commuting to and from the workplace. But if part of your job includes traveling, then in general the company must pay you for the time you spent traveling during your workday.
A law called the Portal-to-Portal Act says that employers are not required to pay for the time employees spend doing tasks before or after their principal job activities. Those tasks are called “preliminary” and “postliminary” activities. In general, the company does not have to pay you for time you spend (i) traveling to and from work’ or (ii) incidental activities before or after work.
But you need to also be aware of something called the “continuous workday” rule. Under the “continuous workday” rule, the “workday” is generally defined as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” The “continuous workday” rule was adopted by the United States Department of Labor under the Portal-to-Portal Act. Under the continuous workday rule, once the employee has started work, they must remain on the clock until the end of the workday, and the employer is not allowed to cut out portions of the day unpaid (other than meals and breaks).
Yes! To paraphrase those car insurance advertisements:
“15 minutes a day can add up to a $6 million verdict!”
The dollar amounts involved in your claim are probably far larger than you realize. Cheating someone out of small amounts each day adds up over time. In addition, when you multiply small daily amounts over large numbers of employees, the numbers get big very quickly. (See the detailed mathematical explanation shown below.)
Even if your own personal claim does turn out to involve a small dollar amount, here are five reasons why even a small claim is worth pursuing:
First, the fair pay laws contain what are called “attorney fee-shifting provisions.” That means that if you successfully sue under those laws, the employer has to pay your attorney’s fees and expenses, so you don’t have to. That is written into the law for two reasons: (i) the lawmakers wanted to make sure that if a company violates the law, the employee would receive all of the pay that they were cheated out of, not just some of it; and (ii) they wanted to give lawyers an incentive to take these cases and represent workers to obtain justice, even if the amount the employee was cheated out of was small. So the fee-shifting provisions give attorneys an incentive to get involved in these cases, even if the dollar amounts are small. (Those fee shifting provisions also give employers a huge incentive to be reasonable in settlement discussions. If an employer is given an option to settle a case but refuses and goes to trial and loses, that employer will end up paying both sides’ attorneys’ fees, which may total far more than the amount of the wage claim).
Second, the employee who files the lawsuit on behalf of themselves and other employees frequently serves as the “class representative” in the lawsuit, which entitles that person to a “service award,” which is additional compensation above and beyond the amount of their own wage claim. Though this amount varies, it is frequently at least several thousand dollars.
Third, while the amount you have been underpaid may seem small when you look at just one day, in the grand scheme of things those numbers can add up to be very big, especially if it’s a large employer. For example, in 2018 a jury ordered the Missouri Department of Corrections to pay its prison guards a total of $113.7 million because for years it had made its 13,000 prison guards engage in unpaid pre-and-post-shift activities.
Fourth, if they’re doing this to you, they are likely doing it to many other people as well, and standing up to them is the only way to get them to stop.
Fifth, if an employer is cheating its employees in small ways and getting away with it, they will over time likely move on to cheating both their other employees and their customers, and in larger ways. Again, standing up for yourself is the only way to make them stop these illegal practices.
So how can 15 minutes a day add up to a $6 million verdict? Here’s an example of how what seems like a small claim is actually a multimillion dollar claim. An employee working at a call center is paid $15 per hour, but they are required to show up 15 minutes before the employer actually puts them “on the clock.” Why? The company requires them to start making calls at 8:00 AM exactly. But in order to do that, they have to be there at 7:45, because they have to: attend a five-minute meeting before every shift with their supervisor giving them a rundown on new issues; get a headset to use; find an open cubicle; boot their computer up; login to three different software systems; etc.
To the employee, she’s being cheated out of $3.75 a day ($15.00/hour ÷ 4 = $3.75). So while she’s unhappy about it, she also thinks the numbers involved are too small to justify getting a lawyer involved. After all, it’s only a couple of bucks, right? Wrong.
That employee is just one of 500 employees working out of that telephone calling center. Let’s assume that every employee earns $15 per hour, works the same 40-hour week, and that they are all getting deprived of 15 minutes each morning. That means that each employee has 15 minutes per day of not just unpaid time, but unpaid overtime (because she works 40 regular hours each week, under the FLSA the extra 15 minutes per day must be paid at time-and-a-half). Here’s how the math works out:
15 minutes per day X five days a week = 1.25 hours per week
The FLSA requires double damages, so:
If this was a willful violation, the claim goes back three years, so
$1.755 Million per year X 3 Years = $5.265 million
Add $750,000 in attorney’s fees to that, and the total verdict will be more than $6 million!
So that 15 minutes a day can add up to a $6 million case! (In fact, if this company was located in the state that called for triple damages instead of double damages, the verdict amount in that example would have actually been $8.64 million!)
Yes. It doesn’t matter whether or not you still work at the job, and the reason you left is also irrelevant. You are still allowed to make a claim for unpaid wages even if they fired you. It is important to understand, though, that there are limits on how far back in time you can go to recover backpay. So while it’s always important to act quickly to hire a lawyer to assert your rights, it’s especially important if you no longer work at the company, because the two-year statute of limitations period is constantly shrinking with each day that passes.
Generally speaking, the FLSA puts a two-year statute of limitations on suits for unpaid wages, but that can increase to three years if the employer “willfully violated” the law. The time calculations, though, run from the date of the paycheck that was short. In other words, meeting the statute of limitations in an FLSA claim is not usually an “all or nothing” thing, as the court only allows the employee to recover for underpaid weeks that are within the statute of limitations period.
Here’s an example. Let’s assume that an employee started work for a company on January 1, 2018. The employer violated the FLSA every week, as they took improper deductions from the employee’s pay that made the employee’s hourly rate of pay less than the required minimum wage. Every week the employee was underpaid by exactly $100. The employee’s last day of employment was December 31, 2019. Let’s also assume that these were not “willful violations,” so the statute of limitations period that the court would apply is two years.
If the employee files a lawsuit on December 31, 2019, then the lawsuit is timely filed, because the worker was underpaid some amount within the two years before the filing date. Going two years back from that particular filing date means that the employee can include all of their actual lost wages, suing for $10,400 in actual lost wages (52 weeks X two years X $100 per week = $10,400, before doubling the damages).
But if the employee waits to file the lawsuit, and doesn’t file it until December 31, 2020, the lawsuit is still timely filed, because the worker was underpaid by some amount within the two years before the filing date. But by waiting, the employee has given up the right to recover the damages that occurred more than two years before the filing date. That basically means that the employee has lost the right to include any lost wages from 2018. So the most the employee can claim in actual lost wages is (52 weeks x $100 per week = $5,200).
If the employee instead waits until January 1, 2022 to file the lawsuit, the judge will likely throw the lawsuit out because the lawsuit was not filed until more than two years from the last underpayment date.
So the upshot of all this is that it’s important to realize that the clock is always running. As a general matter, each day the employee waits is another day that the employer gets away with illegal actions. This is true even for people who still work at the company, because in addition to seeking backpay, lawsuits also generally get the employer to change any illegal policies, so that future paychecks will also be calculated properly.
Also, do not forget that it takes a lawyer time an investigation before they can put together a lawsuit. This process can sometimes take months before the lawsuit is ready to file, and sometimes that procedure reduces the amount that the client can recover. But even though the investigation and delays can reduce the amount of the recovery, it is still time well spent because without proper and adequate investigation, the lawsuit may fail. For instance, some bigger companies have very complicated structures, with dozens or even hundreds of different corporations and limited liability companies involved, and the paycheck documentation may not properly and adequately disclose the name of the employer. If a lawyer rushes the investigation process and sues the wrong company, the lawsuit might get dismissed and the employee get nothing. So the client needs to give the attorney sufficient time to investigate, and that’s best done by hiring the attorney very early on.
The sooner you hire an attorney to assert your rights, the better off you are. This is true generally, not just for statute of limitations purposes. The sooner you assert your rights, the better your memory of the various events will be, and that can only help your claim. So don’t wait.
But if it’s already been a while and you wonder if your claims are now timely, you and your attorney need to look at the statutes of limitations. Notice that that is plural – statutes of limitation – because one client may have several possible different laws that they could file a lawsuit under, and each of those claims might have a different statute of limitations period applicable to it.
In general, statutes of limitations require that an employee actually file a lawsuit before the statute expires. It’s not enough to simply consult with a lawyer, or hire a lawyer, or tell the employer you’re going to sue them, or file a grievance. In general, you have to actually start a lawsuit against your employer within the time period allowed, by filing a paper with the court commencing the lawsuit. That piece of paper is typically called a “complaint” or “petition.”
It can be very complicated figuring out exactly when the statute of limitations will expire, because there are exceptions and “timeouts” which might apply, depending on the specific facts of your particular case. It is sometimes not obvious at all when the statute of limitations is up. For instance, in some situations, a lawsuit filed by someone else against your employer may operate to “toll” (or placing a hold on, or extend) the statute of limitations for your claim. One common example of a statute of limitations being “tolled” is when the person is underage. In many states, the clock on the state statute of limitations does not start to run until the person suing reaches the age of 18. In some states, it’s higher than that. For instance, in some states, the state statute of limitations does not start to run until the person turns 21. As another example, if another employee filed a class action and you meet all of the requirements of being a member of that class, you may be deemed to have already met the statute of limitations even though you weren’t the one who filed the lawsuit.
In addition, it’s also important for claimants to realize that there is an extensive amount of work that a lawyer needs to do before they are ready to file a lawsuit, and getting to that point frequently takes several months after the first meeting. Most lawyers will turn away a case if a client comes to them just a short time before the statute of limitations is up, because the lawyer won’t have enough time to do everything they need to. For instance, before filing a lawsuit, a law firm typically must:
So if you have any doubts, consult an experienced attorney as soon as possible, so as to take maximum advantage of your rights and avoid problems with statutes of limitation.
While there is no generally applicable federal law that requires breaks, whether paid or unpaid, some states do have laws requiring that.
Federal law applicable to just certain fields do require breaks. One example, for instance, is truck drivers. The Federal Motor Carrier Safety Act requires that tractor-trailer drivers have certain minimum periods of time off each day, so as to make sure that tractor-trailer drivers are not dangerously fatigued.
For a summary description of whether your particular state requires employers to give their employees breaks during shifts, click here.
Employers have a legal obligation to maintain accurate time records. It’s illegal for a supervisor to change accurate time records in order to save on payroll costs. We’ve unfortunately seen this happen many times, and it frequently happens because executives put significant pressure on management to keep labor costs down.
If you know or suspect this is happening, you should keep an accurate time log of all of the hours you actually worked, including the exact times you punched in and out. In fact, if you can easily do it, we suggest that you consistently use a cell phone to take pictures of the timecard or the computer screen, so as to create very strong proof of the exact times you punched in or out, and then later compare it to your paycheck stub to see if the numbers are consistent.
The short answer is that if you are an employee, unless your job meets one of the exemptions described here, every job is eligible for overtime pay if the employee works more than 40 hours in any given seven-day work week. That’s because the default rule is that overtime pay is required unless the job meets one of the specific exemptions.
No, it isn’t legal. If the overtime requirements apply to you, the FLSA requires the employer to calculate overtime separately for each seven-day work week you work (regardless of how much time is in a pay period).
Here’s an example: Edna is a non-exempt employee who gets paid $10 per hour. She works 60 hours in the first week of the pay period and 20 hours in the second week. The company tells her that this is a “no overtime” situation, since she worked “the equivalent” of two 40-hour work weeks. They give Edna a gross paycheck for 80 regular hours, with none of it calculated at time-and-a-half overtime. Here is how the employer calculated it:
Weeks 1 and 2:
That’s wrong, and illegal. The law requires the employer to pay Edna time-and-a-half for the extra 20 hours she worked during the first week. The correct way to calculate Edna’s pay is:
Week 1:
Week 2:
Total: $900
So by improperly calculating overtime hours, in just that one paycheck this employer improperly cheated Edna out of $100 in gross pay ($900-$800 = $100).
This may not seem like much, but look at it from the company’s perspective. If they have a lot of employees, cheating each employee out of a little bit each week can really add up to big numbers pretty quickly. For example, using the example above, if the company did this every [ay period to every one of its 100 employees, in one year the company would have cheated the employees out of more than a quarter of a million dollars! (100 employees x $50 per week x 52 weeks = $260,000).
Companies that do this can and should be forced to stop illegally cheating their employees out of their hard-earned pay. We can help you force them to stop cheating their workers!
The FLSA specifically prohibits an employer from retaliating in any way against an employee who engages in protected conduct. Protected conduct doesn’t only include filing a claim. The law protects all workers who:
All that being said, companies that do engage in that kind of retaliation just make their problems worse, because you can add additional claims to your lawsuit against them if they do retaliate against you.
In that situation, your employer has to comply with both state and federal laws. To give an example, as of August 2020, federal law requires all employers to pay a minimum wage of $7.25 per hour, and Missouri law requires all employers to pay a minimum wage of $9.45 per hour. The only way for a Missouri employer to comply with both of those laws in 2020 is to pay each employee at least $9.45 per hour. (Note: these dollar amounts change from time to time, and are for illustration only. Click here for information on what the current minimum wages are.)
To summarize this concept into a general principle, your employer must follow the applicable law that’s more favorable to you.
Even if your employer is paying you overtime at time-and-a-half, you might still be getting cheated. How? By the employer improperly calculating your usual hourly rate.
Under the FLSA, when calculating your hourly rate for purposes of figuring out how much they have to pay you for time-and-a-half overtime pay, the employer must include the value of any bonuses that they pay you (unless it’s completely discretionary). So if you have any bonus payments made to you based on pre-set calculations (such as a profit sharing plan, meeting sales goals, etc.), your employer must include that compensation when figuring out your hourly rate.
Example: Gertrude regularly works a 40-hour week and earns a fixed $15 per hour. Part of her overall compensation, however, is a non-discretionary annual bonus, based on the company’s gross income. The company’s profit sharing plan says:
“Every employee will get a $5,200 bonus. However, if the company’s gross income for the fiscal year is more than $10 million, each employee’s bonus will instead be $8,000, and if the company’s gross income for the fiscal year is more than $15 million, every employee will instead get a $10,000 bonus.”
What is Gertrude’s correct overtime pay rate? Well, it’s not $22.50 ($15.00 x 1.5 = $22.50). Instead, the company must include the bonus payment when calculating her actual hourly pay rate. At a minimum, she is going to earn a $5,200 bonus for the year, which is the equivalent of $100 per week (which when divided by 40 hours per week, comes out to an additional $2.50 per hour worked). So her properly calculated “straight-time” (non-OT) hourly rate will be at least $17.50 ($15.00 plus $2.50 = $17.50), and her properly calculated time-and-a-half OT rate will therefore be at least $26.25 ($17.50 x 1.5 = $26.25).
Generally, yes, they can. The Fair Labor Standards Act (FLSA) does not limit the number of hours in a day or days in a week an employee may be required or scheduled to work, including overtime hours, if the employee is at least 16 years old. It only requires that covered, nonexempt employees be paid overtime pay at a rate of not less than one and one-half times their regular rate of pay after 40 hours of work in a workweek. Employers are free to set and enforce work schedules and the employees must comply with the schedule that is given to them. Employers can legally require employees to work overtime, but if they do, the employer must pay non-exempt employees time-and-a-half for all the time they work over 40 hours in a single seven-day work week.
In almost all cases the answer is: No! If an employee is “non-exempt,” it is illegal for the employer to not pay time-and-a-half overtime for all the time worked over 40 hours in a single seven-day work week. The company and the employee are not legally permitted to work out some kind of a different arrangement. Employers and employees who are covered by the FLSA are not free to bargain for either a wage that is below the minimum wage, either. Many employers wrongly believe that they can “cut a deal” with employees to avoid paying overtime rates – they cannot.
If your employer made you sign something agreeing to employment terms in violation of the FLSA, that piece of paper is likely totally unenforceable and worthless. You are likely still legally entitled to the FLSA-required amounts including minimum wage and time-and-a-half overtime payments for all work in excess of 40 hours per seven-day work week.
Yes, you can still file a claim for unpaid overtime under the Fair Labor Standards Act, no matter what they made you sign. This is true because a settlement of claims for unpaid wages under the FLSA is not binding until it’s approved by either a court or the United States Department of Labor. In addition, contracts signed under “duress” (improper threats or coercion) are often held to be invalid and given no effect at all.
Some employees are “exempt” from the mandatory time-and-a-half overtime requirements of the FLSA, as those requirements don’t apply to every job. Under the FLSA, there are two general categories general categories of jobs: “exempt,” and “non-exempt.” As the name implies, exempt workers do not have to be paid overtime. Non-exempt workers must be paid overtime for all hours over 40 worked in a single 7-day work week.
It’s important to understand that it’s not always easy to tell whether a particular job is exempt or non-exempt. In fact. sometimes it’s extremely complicated, in part because laws often have grey areas. Fortunately, the law puts the burden on the employer, not you, to prove that a particular job is exempt from the overtime requirements. If the employer cannot prove your job properly falls into a specific “exempt” category, then overtime must be paid. So the default rule is that overtime must be paid unless the employer can prove otherwise.
The FLSA sets forth a number of categories of “exemptions,” and employers do not have to pay time-and-a-half overtime for any job falling within any of those categories. As a a general guideline, here are brief summaries of some of the various exemptions under the FLSA:
There are complicated definitions for each of these exemptions, so please do not assume that you are not entitled to overtime pay just because one of these titles looks like it might describe your job. When in doubt, get competent advice from a lawyer.
The FLSA provides minimum standards that may be exceeded, but cannot be waived or reduced. Employers must comply, for example, with any Federal, State or municipal laws, regulations or ordinances establishing a higher minimum wage or lower maximum workweek than those established under the FLSA. Similarly, employers may, on their own initiative or under a collective bargaining agreement, provide a higher wage, shorter workweek, or higher overtime premium than provided under the FLSA. While collective bargaining agreements cannot waive or reduce FLSA protections, nothing in that law or the regulations published by the United States Department of Labor under the FLSA relieves employers from their contractual obligations under such bargaining agreements.
In most cases, failure to ask is not a defense for an employer in an FLSA case. In other words, if you’re at work and working, the law says that they’re on notice of that. It’s up to them to prevent you from working if they don’t want to pay you for that work. If they didn’t prevent you from working, then they have to pay you for it.
The FLSA defines the term “employ” to include the words “suffer or permit to work”. Suffer or permit to work means that if an employer requires or even just allows employees to work, then the time spent is probably hours worked.
So time spent doing work not requested by the employer, but still allowed, is generally hours worked, since the employer knows or has reason to believe that the employees are continuing to work and the employer is benefiting from the work being done. This time is commonly referred to as “working off the clock.”
For example: An employee continues to work at the end of the working hours. He or she may need to finish an assigned task, prepare reports, finish waiting on a customer or take care of a patient in an emergency. An employee may take work home to complete in the evening or on weekends to meet a deadline. All that activity counts as hours worked.
When an employee must correct mistakes in his or her work, the time must be treated as hours worked. The correction of errors, or “rework”, is hours worked, even when the employee voluntarily does the rework.
Time which an employee is required to be at work or allowed to work for his or her employer is hours worked. A person hired to do nothing or to do nothing but wait for something to do or something to happen is still working. The Supreme Court has stated that employees subject to the FLSA must be paid for all the time spent in “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer of his business.”
Hours worked include all time during which an employee is required or allowed to perform any work for an employer, regardless of where the work is done, whether on the employer’s premises, at a designated work place, at home or at some other location.
It is the duty of management to exercise control and see that work is not performed if the employer does not want it to be performed. An employer cannot sit back and accept the benefits of an employee’s work without considering the time spent to be hours worked. Merely making a rule against such work is not enough. The employer has the power to enforce the rule and must make every effort to do so. Employees generally may not volunteer to perform work without the employer having to count the time hours worked.
Absolutely not. We’ve seen this situation many times, and it always amazes us. Not only that a boss would do such a blatantly illegal thing, but that many of the employees who the boss does it to actually don’t or won’t do anything about it. This is blatant wage theft, and the employer owes you at least double the amount of wages that they have cheated you out of. We can help you stand up for your rights.
Under the FLSA and state laws, an employer must pay for all time worked. Period.
Absolutely not. It is irrelevant whether or not the company has a policy that says employees are not allowed to work overtime. All that matters is whether the company knew or should have known that employees are working more than 40 hours in any seven-day work week. The company must pay overtime even if it doesn’t specifically ask or tell the employee to work overtime. If the company allows the employee to work the extra time, they are on the hook for overtime pay.
Here are some examples of those kinds of situations, where the employer must pay overtime even though they may try to argue they don’t have to, because they “didn’t authorize it” or “didn’t know”:
As a general rule, the employee is entitled to overtime pay for extra hours work, regardless of whether they specifically reported the overtime to the company. But there are exceptions. In general, the exceptions to that would be:
Unless you work for a government, that it not permitted. If you do work for the government, then this is generally permitted, because there are special rules that apply to those employers that permit this. But in general, the employer has to give you give you time off equal to one and a half times the extra work hours. So, if you work one extra hour, they have to give you 1.5 hours off in “comp time.”
Just because the company is taking the position that you’re a salaried employee does not mean that you’re not entitled to overtime pay. That’s true even if you signed a contract agreeing to be paid just a fixed salary. If the overtime rules apply to you, then they apply to you – regardless of what the employer says, and regardless of what you signed.
Under the FLSA, contracts to work for a fixed salary (without any time-and-a-half overtime) are only allowed for “exempt” employees, and only if the company follows all the rules properly. Click here for a detailed explanation of what “exempt” means. While we strongly suggest you read that page carefully, an oversimplified version of a complicated subject is that “exempt” employees typically does not include people who do not both (i) manage two or more employees and (ii) makes hiring and firing decisions (or has meaningful input on those decisions).
You should also be aware that if the company makes deductions from your “fixed” salary based on how many hours you work, those deductions mean that they lose the exemption, requiring them to pay you overtime!
So, unless the company can prove both that you meet the definition of “exempt” employee and that they have followed all the rules, they have to pay you overtime – no matter what you signed or agreed to when they hired you.
The short answer is: No. If they say you’re on a salary but your pay goes up and down based on how many hours you work, you are probably entitled to overtime pay. If the employee’s job meets one of the definitions of an exempt employee, the company is allowed to pay a fixed salary regardless of how many hours the employee works. So that means that if the employee works 60 hours a week, the company does not have to pay overtime. But here’s the catch: if the employer wants to ignore how many hours the employee works, it has to always ignore that number. They can’t ignore it when it helps them, but apply it when it hurts them. So when the employee works only 20 hours a week, the company still has to pay the same fixed salary anyway. If the company ignores hours over 40 a week, but deducts pay when the employee works under 40 hours a week, they are not evenly applying the rules, which means that they lose the exemption and are required to pay overtime, going back at least two years (and maybe three).
The answer to this question depends on why they reclassified your job as non-exempt, and whether there were any significant job differences between then and now. We need to look at exactly what the requirements of your job were before the reclassification and determine whether or not you were nonexempt before the change.
If your job duties did not change in any significant way, and they simply reclassified you as non-exempt, they probably did it because they realized they were violating the Fair Labor Standards Act and were required to reclassify your job. If that’s the case, then yes, they will have to reimburse you for unpaid overtime going back two or three years before that.
If your job duties did change in a significant way at the same time they reclassified you, and those changes took you from an exempt category to a non-exempt category, then they did properly pay you in the past and you’re not entitled to an additional payment. But reaching this conclusion can require application of some pretty complicated tests, so if this has happened to you, I strongly suggest contacting an attorney immediately because there is a very good chance that they do owe you back pay. It’s very unlikely that a company is going to all of a sudden reclassify an employee from exempt to nonexempt and start paying overtime for no good reason, so if they did that to you, they very likely do owe you back pay.
Under the Fair Labor Standards Act, there are several different ways an employer can properly calculate overtime pay. One of these is often called “fixed salary for fluctuating workweeks,” (which some people used to call “Chinese overtime”). Although it’s not commonly used, some companies use it because it can save them a lot of money. But it’s also a system that is frequently used by people who are trying to hide violations of federal law. So if your company is applying it to you, you need to carefully look at it to see if they’re doing it legally. Here’s a simplified explanation of the requirements that must be met in order to use this method of overtime calculation:
In such a situation, the regular rate is determined by dividing the fixed salary by the number of hours worked that week. Since the fixed salary is already deemed to compensate the employee at straight time for all hours worked, any overtime hours only need to be paid at “half-time”, instead of time-and-a-half. The employee has already been paid straight time by virtue of the salary, and the straight time is only paid once, so the overtime hours will be paid at half the regular rate, thus bringing the employee up to time-and-a-half. In workweeks in which the overtime is high, the regular rate will be low, and the employer will enjoy a lower per-hour overtime cost. The drawback for the employer is that if work is slow, and the employee is only working 25 or 30 hours per week, the fixed salary must still be paid.
But this is risky for a company to use, because if they break the rules, employees can sue them for large amounts of backpay and damages. Here are some ways that a company trying to use this method can break the rules:
There are basically two different methods to properly handle this situation. One method is for the employer to calculate a weighted average of your average hourly rate, and then pay all overtime using one and a half times that hourly rate, regardless of which job you were in for the overtime hours.
The other method is to keep each job separate, and pay overtime at one and a half times the hourly rate applicable to that job for all hours worked over 40.
The catch is that the company has to decide in advance which method it’s going to use, and then consistently use it. They can’t frequently switch between these two methods every week or two depending on which one is better for them given a particular work schedule. If they do that, then they’re in violation of the law.
It depends on where you’re located. Federal law sets a basic minimum wage that applies throughout the United States. But some states have local laws that set a different minimum wage. The rule is that you have to be paid whichever minimum wage is higher – the federal minimum wage or any applicable minimum wage in your state.
Click here to see what the current federal minimum wage is.
Click here to see what the minimum wage in your state is.
If your employer is not following the law properly, you have three options:
Under the first option, if the underpayment really was a mistake, they might possibly agree to that. I sure think it’s unlikely, but it’s possible. The downside, of course, is that you’re putting a target on your back by informally complaining. They may fire you and claim you never complained before your termination.
For the second option, the U.S. Department of Labor is the government agency in charge of enforcing the Fair Labor Standards Act. While we are big fans of the United States Department of Labor, the fact is that they are spread extremely thin, move quite slowly and don’t have a financial incentive to do a great job. In addition, the US Department of Labor enforces only federal laws, not state laws. If you are in a state that gives you additional rights, the DOL won’t help you enforce those rights. For example, federal law provides for double damages when an employer underpays you, but some states (like Missouri) require the employer to pay triple damages. If you rely on the DOL to help you in Missouri, you’re leaving money on the table and letting the employer off the hook too easily.
Each state typically has a Department of Labor which is responsible for enforcing that state’s wage and hour laws. So you could file complaints with both the United States Department of Labor in your particular state’s Department of Labor as well.
Unfortunately, politics sometimes interferes with the just application of some of these laws. For instance, sometimes one party is in charge of the state legislature but the governor is a different party and they don’t have enough votes to override a veto changing laws they don’t like. So instead of actually changing the law, they instead leave the law on the books but prevent enforcement of it by dramatically reducing the budget of the agency in charge of enforcing it.
Hiring a lawyer yourself is usually a faster and more effective way to get paid what you are owed. Most attorneys will handle these cases on contingent basis, meaning you only have to pay them if they are successful in helping you recover backpay. Because they only get paid if they win, and don’t get paid until they do win, private attorneys have much more incentive to move your case along, be thorough, and use every applicable law to help you win.
For instance, sometimes an employee has valid claims they can assert against an employer in addition to fair pay law violations (such as discrimination claims, retaliation claims, wrongful termination claims, invasion of privacy claims, etc.). Government agencies cannot and will not help an employee with those additional claims, as the agency’s narrow focus is on enforcing the fair pay laws. They are not legally permitted to file additional claims outside the fair pay laws. So in that situation, only a private attorney can help the employee get full justice.
The Fair Labor Standards Act and many state laws have anti-retaliation provisions. That basically means that it’s illegal for a company to take any action to punish in any way for anything you do that’s protected activity under the law. Protected activity includes not only suing them, but cooperating with someone else who suing them, testifying truthfully in any kind of hearing or deposition, and other things that you think may get the company upset with you.
That means that if you file a lawsuit against the company for backpay and as soon as they learn about it they fire you, you can add a wrongful termination/retaliation claim to the lawsuit (or file a separate lawsuit for that). As a practical matter, most companies aren’t stupid enough to do something as obvious as that. They’re not going to give you a pink slip saying “You’re fired because you sued us.” Instead, they’re going to fire you because you sued them, but pretend that it’s for some other reason. “You’re fired because you were two minutes late last Tuesday.” “You’re fired because your performance reviews are down.” The legal terminology for that is “pretext.” It just means that it’s a sham excuse, that it’s “cover” for the real reason, which they don’t want to admit because it’s obviously illegal.
It’s amazing how many times someone is a phenomenal employee, but only until the employee complains about something. Then the company’s opinion of them suddenly changes – their reviews go down, they get written up for doing the same things they’ve always done them, they “have an attitude problem,” and co-workers act like they’re practically radioactive. The star employee all of a sudden can do nothing right. And the reality is that obviously the employee didn’t change, but the company’s opinion of them changed and now they’re looking for reasons and excuses to give the employee a hard time
The gray area in all of this is proving that the real reason the company fired you/demoted you/laid you off/gave you bad reviews, etc. is because you sued them, cooperated with someone else who’s suing them, refused to lie under oath, etc. And to do that, you need evidence. Fortunately, you probably have plenty of evidence of that, but just don’t realize it.
We know that this can sometimes be a real problem for people who file claims against their employer. Sometimes people are so afraid of retaliation that they actually just accept that they’re being ripped off and their wages stolen. But to us, completely surrendering your rights is an unacceptable option. So realistically, what can you do about it? Well, there are several things.
One thing you can do to help create evidence is keep a detailed log book for your lawyer telling them all of the conversations you’ve had with the company about all the different issues (including not only your pay issues, but your performance reviews, arrival and departure times, offhand comments by co-workers about how the boss said you’re in deep trouble because you’re suing the company, etc.) No matter how good your memory is, you absolutely will forget a lot of details, and keeping a good written account for your lawyer of all of these details is extremely important. It can make or break a case, and it is well worth the effort it takes to create it.
We frequently give composition notebooks to clients to keep these notes and, the kind that are stitch-bound and you can’t take out any pages without it being noticeable. We put a sticker on the front of it saying:
“CONFIDENTIAL AND PRIVILEGED ATTORNEY-CLIENT
COMMUNICATIONS FROM [CLIENT] TO CURRAN LAW FIRM.
DO NOT SHOW THIS NOTEBOOK TO ANYONE”
We tell the client to consistently keep dated notes to us concerning any significant events, and to make notes as soon as something happens. Who was present, what was said, what was done, documents created, etc. (Don’t keep a pen with the notebook when you’re writing it because if you always use the same pen, the defense attorney will try to claim that it’s all in the same ink color because you made it up and created the notebook two weeks before the trial.)
Those notes are a huge help later, and can be the difference between winning and losing.
Why? Consider which scenario is more powerful. You’re on the jury, and the employee who is suing gets up on the witness stand, is sworn in, and testifies. In the first scenario, she gets on the stand and says:
“On January 22 two years ago, at about 2:30 in the afternoon, I was sitting in my office when Mr. Boss came in and told me . . . .”
The defense attorney then attacks her on cross-examination, claiming that she couldn’t possibly remember two years later the specifics of everything that happened, including the date and time. And that kind of attack will probably get some traction with the jury, because it is kind of hard to believe that somebody could remember that much specific information after such a long time
But in the second scenario, she gets on the stand, holds up a composition notebook for the jury to see, and says:
“This is a notebook that I frequently made notes in during the time I was going through this difficult time two years ago with my boss. I met with Mr. Curran back then because I was so upset about what was happening. He gave me this notebook and told me that every time another incident happened, I should go home after work and sit down while it was fresh in my mind and make notes about everything that I can remember about the incident. So I did. It was hard to force myself to write these notes down, because all I wanted to do was think about something else. But I made myself do it. Every time an incident happened, when I got home that night I would sit down at my kitchen table with this notebook and write down notes about what he did to me.
My notes for January 22 say [reading from the notebook]:
“Today, I was working on my monthly reports on my computer when Mr. Boss came into my office, closed the door behind him and said . . .
The second scenario is going to be much more impressive to the jury. It makes it much harder for the defense attorney to attack the witness, and it will go a long way towards weakening their claim that she made all these facts up after the incident.
Another thing you can do is keep track of other worker’s incidents, conduct and write-ups. Why? Because it can help prove that there stated reasons for doing something are lies. For instance, if the company write you up for being three minutes late on Monday, but somebody else was five minutes late on Tuesday and did not get written up, that fact helps prove that you’re being late was not the real problem. That kind of evidence is super helpful, because it exposes the employer’s lies.
In addition, another technique you can sometimes use is to send yourself emails containing the details about what happened in various incidents. The date and time stamps on the emails are effective to prove that you didn’t make these claims up later, after the fact.
IMPORTANT NOTE: Do not do this on any email account that the employer has access to. So if your work email is EthelJohnson@IBM.com, don’t send these emails to or from that account. Instead, create a separate email account completely outside of work that you use for this purpose, such as a Gmail account. And never access your Gmail account from your work computer, because it may store your password and you might inadvertently give your employer access to your emails on that account. Instead, you might access your Gmail account only from your personal private cell phone. (If your cell phone is one furnished to you from work, don’t access it from that account, but only access it from your personal home computer, etc.)
There are two reasons for this. The first reason is that you want to make sure these emails don’t fall into the hands of the employer. The second reason is that you want to make sure that you still have access to all of these emails even if the company fires you and terminate your access to your work email address. Spending the time and effort to create 200 email notes is only helpful if you have access to them. If the employer deletes them all and you don’t have backups of them, there no use at all.
If your employer is not following the law properly, you have three options:
Under the first option, if the underpayment really was a mistake, they might possibly agree to that. I sure think it’s unlikely, but it’s possible. The downside, of course, is that you’re putting a target on your back by informally complaining. They may fire you and claim you never complained before your termination.
For the second option, the U.S. Department of Labor is the government agency in charge of enforcing the Fair Labor Standards Act. While we are big fans of the United States Department of Labor, the fact is that they are spread extremely thin, move quite slowly and don’t have a financial incentive to do a great job. In addition, the US Department of Labor enforces only federal laws, not state laws. If you are in a state that gives you additional rights, the DOL won’t help you enforce those rights. For example, federal law provides for double damages when an employer underpays you, but some states (like Missouri) require the employer to pay triple damages. If you rely on the DOL to help you in Missouri, you’re leaving money on the table and letting the employer off the hook too easily.
Each state typically has a Department of Labor which is responsible for enforcing that state’s wage and hour laws. So you could file complaints with both the United States Department of Labor in your particular state’s Department of Labor as well.
Unfortunately, politics sometimes interferes with the just application of some of these laws. For instance, sometimes one party is in charge of the state legislature but the governor is a different party and they don’t have enough votes to override a veto changing laws they don’t like. So instead of actually changing the law, they instead leave the law on the books but prevent enforcement of it by dramatically reducing the budget of the agency in charge of enforcing it.
Hiring a lawyer yourself is usually a faster and more effective way to get paid what you are owed. Most attorneys will handle these cases on contingent basis, meaning you only have to pay them if they are successful in helping you recover backpay. Because they only get paid if they win, and don’t get paid until they do win, private attorneys have much more incentive to move your case along, be thorough, and use every applicable law to help you win.
For instance, sometimes an employee has valid claims they can assert against an employer in addition to fair pay law violations (such as discrimination claims, retaliation claims, wrongful termination claims, invasion of privacy claims, etc.). Government agencies cannot and will not help an employee with those additional claims, as the agency’s narrow focus is on enforcing the fair pay laws. They are not legally permitted to file additional claims outside the fair pay laws. So in that situation, only a private attorney can help the employee get full justice.
To qualify for the administrative employee exemption, all of the following tests must be met:
There are numerous so-called “blue-collar” jobs which are also exempt from the FLSA. The complicated details of this exemption are beyond the scope of this website. Please do not assume that you are not entitled to time and ½ pages because one of these titles seems to describe your job. Speak with a lawyer if you have any questions. Although there are others, here is a brief summary description of some of the “blue-collar” exemptions:
It’s important to realize that many of these exemptions are not as broad as their title implies. For instance, the Motor Carrier Exemption does not apply to all truck drivers. If you are employed as a truck driver and you are being paid an hourly rate, you probably are entitled to time-and-a-half pay for overtime. We would be happy to speak with you if you have questions about your particular situation and whether you are entitled to overtime pay.
To qualify for the computer employee exemption, the following tests must be met:
Please note that many jobs in the computer field do not meet these requirements, and are entitled to overtime pay. It is fairly common for employers to improperly deny overtime pay to employees whose jobs are primarily computer-related, simply because the label makes the employees job superficially appear to be exempt. It is important to conduct a thorough, detailed analysis of all of the aspects of the employee’s job to see whether or not this exemption actually applies. If the job does not meet all of the required elements, then the employee is not exempt, and is entitled to overtime pay.
To qualify for the executive employee exemption, all of the following tests must be met:
The Department of Labor’s Regulations under the FLSA contain a special rule for “highly compensated” employees who are paid total annual compensation above a certain level. To fit in this exemption, an employee is exempt if they meet all three of these criteria:
To qualify for the outside sales employee exemption, an employee is exempt if they meet both of these criteria:
To qualify for the “learned professional” employee exemption, all four of the following tests must be met:
To qualify for the “creative professional” employee exemption, all of the following tests must be met:
The above exemptions do not apply to police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees, regardless of rank or pay level, who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work.
Missouri law actually prevents judges from telling juries that there is insurance involved in a lawsuit. The general basis for this rule is because they
Motorcyclists have a bad rep among car drivers — they assume the rider will behave recklessly and believe they cause the majority of motorcycle collisions.
Perhaps you’ve heard that Title VII of the Civil Rights Act of 1964 protects employees from discrimination against race and religion. You wonder if this
Curran Law Firm is proud of all of our citizens who serve in the United States military. We as a nation are in debt to these heroes, who protect us all. As a small token of our appreciation, we are willing to provide, FREE OF CHARGE, to all active military personnel and their spouses a free broad, power of attorney document. This document can be vital for active military personnel, because while one spouse is stationed overseas, the other can sign documents and engage in transactions in the their name. While a broad power of attorney document isn’t right for every situation, it can be helpful for such things as registering or selling vehicles, selling real estate, engaging in banking transactions, filing taxes, and many other matters. Simply call us at 417-823-7500, tell our receptionist that you’re active military and would like a free broad power of attorney document, and we’ll start the ball rolling on this!
