Overtime and Unpaid Wages

Overtime and Unpaid Wages

The Fair Labor Standards Act generally requires employers to pay their employees a minimum hourly rate plus time-and-a-half (1.5x) for working over 40 hours per week. There are exceptions to this requirement; however, employers often incorrectly pay their employees.   Liability against employers can be extreme, not only allowing for the compensation of unpaid overtime or lost back wages, but also additional penalties (liquidated damages), attorneys’ fees, and court costs. The violations can cover numerous types of jobs/industries and payment structures, sometimes regardless as to the amount employees actually earn on a periodic basis.  Some common issues involving potential FLSA overtime are as follows:

Paid a day rate (no weekly salary)

If you’re paid on a day-rate, but not a guaranteed weekly salary of at least $684/week, you could be entitled to overtime for all hours worked over 40 per week.  This problem is common in the energy/oil & gas industry, and applies regardless as to what your day rate may be and even if your day rate is more than $684.  (For example, if your day rate is $800 per day and you generally work over 40 hours per week, then you may be entitled to an overtime rate… as there is no weekly “salary.”)

Misclassified as salaried employees

An exception to the requirement to pay employees an hourly rate plus overtime is if the employee works in a particular position that allows for the compensation of a salary. These could include management or administrative-level positions. But even then, your employer could have “misclassified” you as an exempt employee. Here are some questions to ask yourself:

  • Are you paid a salary of less than $35,568 per year (or $684 per week)?
  • Does your employer reduce your weekly salary for partial-day absences (such as leaving work early or coming in late)?
  • Does your employer give you a position that sounds managerial by title or name or job description, but in reality you are performing manual labor or repetitious tasks without any discretion?
  • Do you perform the same job duties as hourly workers who work with you?
  • Are you an oil or gas field worker paid on a day-rate (even if your employer calls it a “salary”)?
If you answered “yes” to any of the above (and work over 40 hours/week), you may be owed for unpaid overtime, plus additional damages. Contact info@sudemploymentlaw.com or 832-623-6420 to have Mr. Sud evaluate your potential case, or fill out the form on this page.

Tipped employees

An exception to the salary or minimum wage requirement is for “tipped” employees, such as those who work in restaurants, bars, or hotels (waiters/waitresses, bartenders, bellhops, delivery drivers, etc.). The “tipped employee” exception to the FLSA allows employers to take a “tip credit” and pay less than minimum wage, with the understanding that employees must earn at least minimum wage, be given proper notice of the tip credit, not have their tips improperly shared with “non-tipped employees,” or have their tips misappropriated (stolen) by their employers (including managers and owners). Here are some questions to ask yourself:

  • Has your employer failed to give you a detailed description explaining that it will be paying you less than minimum wage, taking a tip credit (including the amount of that tip credit), and not taking your tips away?
  • Has your employer required you to perform a substantial amount of your time (more than 20%) working on non-tipped tasks (such as food preparation, cleaning, setting-up, dishwashing, etc.)?
  • Has your employer deducted from your tips to give to regularly non-tipped employees (such as cooks, dishwashers, back-of-the-house workers, etc.), possibly considered an illegal “tip pool?”
  • Has your employer taken your tips to give to owners or managers?
  • Is your employer not paying you anything, expecting you to earn all your compensation via tips?
  • When you add up your total weekly compensation, including tips, is it less than minimum wage?
If you answered “yes” to any of the above, you may be owed for unpaid wages or overtime, plus additional damages. Contact info@sudemploymentlaw.com or 832-623-6420 to have Mr. Sud evaluate your potential case, or fill out the form on this page.

Other common wage/FLSA violations

There are several other potential FLSA violations that could entitle you to overtime compensation (if you work over 40 hours/week). Some additional questions to ask yourself:

  • Are you paid straight-time “overtime” (over 40 hours) instead of time-and-a-half?
    • Common for energy/oil and gas field workers.
  • Are you paid on a straight commission basis, with no base salary or draw?
    • Common for employees working in sales.
  • Are you paid on a day-rate, regardless as to the amount paid?
    • Common for energy/oil and gas field workers.
  • Are you classified as an “independent contractor” (sometimes called a “1099 employee”) but devoting all your work time to that one employer?
  • Are you an exotic dancer (stripper or adult performer)? Are you required to “pay to play?” Are you faced with any of the tip violations mentioned above?
    • The adult entertainment industry may have a pay structure that seems standard or accepted, but that does not mean it is legal.
  • Are you “on call” and not being paid?
  • Are you paid an hourly rate, but paid the same rate when you go over 40 hours for the week (not being paid time-and-a-half)?
  • Do you receive non-discretionary bonuses that are ignored when your overtime rate is calculated?
If you answered “yes” to any of the above, you may be owed for unpaid overtime, plus additional damages. Contact info@sudemploymentlaw.com or 832-623-6420 to have Mr. Sud evaluate your potential case, or fill out the form on this page.

Off-the-clock work

Employers cannot require non-exempt employees to work off-the-clock. If you are an hourly employee or receive overtime pay, here are some questions to ask yourself:

  • Are you ever required to clock-out and perform work? (Like staying late to clean or shut-down, return equipment, or help a customer.)
  • Are you required to attend work-related meetings or after-work meetings for which you are not paid?
  • Are you ever required to re-do or re-work an assignment on your own time?
  • Are you ever required to take work home to complete on your own time?
  • Are you ever required to come to work early (such as before the start of your shift) to begin “preparing” to work?
If you answered “yes” to any of the above, you may be owed for unpaid wages or overtime, plus additional damages. Contact info@sudemploymentlaw.com or 832-623-6420 to have Mr. Sud evaluate your potential case, or fill out the form on this page.

Retaliation

Finally, the law prevents employers from retaliating against its employees for raising internal or external complaints about overtime or other FLSA violations, including the filing of lawsuits. For example, if you are fired because you complained about not being paid overtime or because you hired a lawyer to due for a potential FLSA violation, that action by itself could lead to substantial additional liability against your (former) employer.

If you think you may have been retaliated against for raising a wage-related concern to your employer, contact info@sudemploymentlaw.com or 832-623-6420 to have Mr. Sud evaluate your potential case, or fill out the form on this page.