The law divides almost all employees into two categories - Exempt or Nonexempt. If you are a "Nonexempt" employee and work over 40 hours in a workweek, you are generally entitled to overtime pay. It is that simple.
Overtime is supposed to be paid at time-and-a-half of your regular rate of pay. So, if you make $10 per hour, you should get $15 per hour for every hour you work over 40 hours per week.
The Fair Labor Standards Act ("FLSA") is the federal law governing the payment of minimum wage and overtime payments. As a general rule, the FLSA requires an employer to pay an employee overtime compensation for all "hours worked" in excess of 40 hours in a workweek, unless that employee is "Exempt" from the law. The law also provides that employees can recover double damages and attorneys fees if an employee sues under the FLSA to recover unpaid overtime or wages. To understand what it means to be "Exempt" or "Nonexempt", see the "Are You Exempt" page.
• General Overview of the FLSA
• The Myth of Compensatory Time
• The Myth of the Salaried Employee as Exempt
• Independent Contractors
• What Unpaid Wage / Overtime Claims Can Be Brought
General Overview of the FLSA
Under the FLSA, "overtime" generally means time actually worked beyond 40 hours per work week. The normal FLSA "work period" is the "work week" -- 7 consecutive days. Some jobs may be governed by a different FLSA overtime threshold, but such jobs are limited and require specific discussion in other sections of this site.
Time actually worked over 40 hours in a 7 day period (the "work week") is "overtime." Some employers may use the word "overtime" differently. For example, they may describe "time worked outside of the employee's normal schedule" or "time worked over 8 hours in a day." There is nothing wrong with this use of the word "overtime," but that does not change the meaning of the word for FLSA purposes.
Thus, under the FLSA overtime rules, nothing happens unless and until a nonexempt employee has actually worked more than 40 hours in a work week. Stated another way, if an employee's total hours actually worked in a work week are not more than 40, the FLSA overtime rules are not triggered at all. No FLSA overtime pay is due. If, and only if, total hours actually worked exceed 40 in a work week, then the FLSA overtime rules may come into play.
Overtime pay for nonexempt employees is computed based on all the time the employee has actually worked in a work week. All time actually worked counts. Therefore, the first step in the FLSA overtime formula is to determine how much time a nonexempt employee has actually worked in a work week. This means that even if you clock out and keep working or are told that you won't be paid for the hours you work off the clock, you probably have a claim for unpaid wages or unpaid overtime (or both). To understand what hours are counted as "hours worked" see the "What Are 'Hours Worked'" page.
If you have been working off the clock (like attending meeting that don't count as hours worked in a day) and would like to discuss this matter with a lawyer, please call us or fill out our questionnaire and we will call you.
Employers will often tell employees that they can get "comp time" if they put in a long week. Even though this practice is widespread, it generally violates the FLSA unless the employer is a governmental entity. The FLSA looks at the actual hours an employee works in a seven day period (the "workweek") to determine what an employee should be paid. If you are getting "comp time" then you may have a claim for unpaid wages.
For example, if you work 50 hours in a week and you are told that you can have time off in some other week to offset the extra 10 hours, this is probably a violation of the law. You are supposed to be paid overtime for the 10 hours you worked in the first week. This practice may be cheating you out of thousands of dollars per year. In fact, most employers don't keep track of the hours and probably never repay the "comp time" that has been banked when an employee quits the job.
Employers often classify workers as "Exempt" by paying them a salary and telling them they are not entitled to overtime. But just getting a salary is not enough
To be "Exempt" under the FLSA, employees must also perform exempt work. Many times employees who get salaries don't do the right kind of work to be exempt. Sometimes employers will call their employees exempt just to get away with not paying them overtime. This is against the law. For example, people with titles like "Assistant manager" or "supervisor" may do very little actual supervision and may not be exempt workers in many cases, even if they are paid a salary. Want to know more about who is and is not exempt? See the "Are You Exempt?" page.
Employers often attempt to avoid the payment of overtime by classifying their workers as "independent contractors." Under the FLSA, a person who is a true independent contractor is not entitled to overtime pay from the company that hires the person under contract. An employer is required to pay overtime for only its "employees." When courts look at whether or not a person is an independent contractor or an employee, they attempt to analyze the "economic realities" of the relationship. In other words, they attempt to figure out the nature of the relationship based on the actual facts and not based on what the parties call the arrangement. While different courts use different factors to analyze the relationship, the following factors are representative of the things courts examine in the independent contractor analysis:
Depending on your location, courts vary in how they assess these factors. Some courts are more likely that others to find a person is an employee rather than an independent contractor.
One category of people who seem to be called independent contractors where that designation is questionable is the temporary employee or "Temp" (like from Manpower or Kelly). Temps can be regularly assigned to a company where they are expected to work 40 or more hours in a week. Unless the workers under such plans are truly "independent contractors" (and this is relatively rare under the law), they are employees, either of the "employee leasing" company, or the "recipient company," or both. It is common for such individuals to fall through the cracks because no one is necessarily watching out for hour many hours someone is working or how that person is classified. However, as "employees," these folks are entitled to overtime pay if and when they actually work more than 40 hours in a work week.
What Unpaid Wage / Overtime Claims Can Be Brought
• Off The Clock Work
• Recovering Comp Time
• Being Misclassified
• Failing to Pay the Proper Rate for Overtime Hours
• Recovering Money for Productivity Bonuses and Shift Pay
Employers sometimes ask their employees to work "off the clock." This may arise because the employer wants to keep overtime costs down. Other times, employers will tell the employee that they should have gotten their work done in the hours they were clocked in so they make them clock out and finish the work. Still other employers will have pre-shift meetings, require training classes that benefit the employer, call special meetings after hours or on weekends, or otherwise ask an employee to work without clocking in. Yet a final way for employers to allow employees to work "off the clock" is to tell them that the hours they worked were not approved in advance and won't be paid for.
If any of these situations apply to you, you are probably entitled to unpaid wages and/or overtime for the hours that you worked and that were not included in your paycheck. For example, if you had a morning meeting each week that lasted 30 minutes, you are probably entitled to pay for 30 more minutes of work per week. If you were told to clock out and keep working, you are entitled to be paid for the time that you worked.
See the "What are Hours Worked?" page for a more detailed discussion what hours should count as "hours worked."
If you have been working off the clock (like attending meeting that don't count as hours worked in a day) and would like discuss this matter with a lawyer, please call us or fill out our questionnaire and we will call you.
"Comp time" is a phrase used by many employers. It generally refers to allowing someone to take off time at a later date for working long hours in other periods. However, the FLSA does not provide "comp time" for non-government employers. This means that if you have ever gotten comp time, you have probably not been paid properly.
The FLSA requires that nonexempt employees get paid for all hours they work in a work week (a 7-day period). Employers generally are not allowed to "bank" time for employees to use at a later time. Therefore, if you work 45 hours in a week and your employer has only paid you for 40 hours while "banking" the other 5 hours, you have not been paid correctly. Over the course of a year, this underpayment can be thousands of dollars depending on how many comp time hours you accumulate.
Being misclassified means being put in the category of people who don't
To be exempt, you have to get a salary and
Unless you get a salary and
Review the "Are You Exempt" page for a more detailed discussion on what it means to be exempt or go to the "Exempt Status of Specific Jobs" page to see if your job is discussed.
Some employers do not pay their employees at time-and-a-half for their overtime hours. Employees may receive straight time pay for their overtime hours. For example, you may be paid $10/hour no matter whether it is for the first 40 hours in the week or for the hours over 40. Such a practice probably violates the law. Nonexempt employees should get time-and-a-half for overtime hours. This means that the $10/hour employee should get $15/hour for all hours over 40 in a week. If you are not getting time-and-a-half, you probably have unpaid wages to collect.
If your employer has paid you a bonus based on productivity or has paid you a shift premium, you may be owed additional compensation. Some of the most popular types of bonuses are supposed to be included in your overtime pay. For example, if you make $10 per hour and get a bonus of $200 productivity bonus for a week's work, your actual compensation rate is $15 per hour ($200/40 hours = $5 per hour). This means that your overtime rate is higher as well. In short, if you received certain kinds of supplemental payments like productivity bonuses, you are probably owed additional wages.