A majority of U.S. employers are required to pay their eligible employees who work in excess of 40 hours per week overtime pay. When this law was passed during the Great Depression, it was meant to help more people get employment by encouraging employers to hire more workers. Today, overtime pay is treated as a right in recognition that people who work more than 40 hours in a week should be paid extra. Some employers attempt to avoid paying their workers the overtime that they deserve. They do so by misclassifying employees, miscalculating pay and using creative timekeeping.
The Fair Labor Standards Act is a federal law that governs wage and hour concerns. Under the law, employers who are covered by it must pay their employees time and one-half of their normal hourly rates for each hour worked beyond 40 in a standard work week. While most employers are covered by the FLSA, not all of their employees are entitled to overtime.
Some workers are exempt from the overtime pay requirement. They fall under one of the exceptions to the FLSA overtime rules and include farmworkers on small farms, outside salespeople, seamen and newspaper deliverers, among others. The majority of the disputes about overtime pay result from white-collar exemptions in the law as employers apply them to administrative, professional and executive employees. If workers in this category earn a minimum of $455 per week and have jobs that require advanced degrees, are supervisory roles or involves making high-level decisions requiring their discretion, they may be salaried and ineligible for overtime pay.
State Overtime Laws
Both New Jersey and Pennsylvania have their own overtime laws which closely mirror the FLSA. Workers are entitled to the rights that are given to them under the most protective law whether it is the federal FLSA or the state’s rule. Your attorney at Swartz Swidler can determine which law should apply in your case if you have not been paid overtime to which you are entitled.
Common violations of overtime laws
There are several common violations of overtime laws, including employee misclassification, failing to count all of the hours that have been worked and miscalculating the workers’ hourly rates. Some employers misclassify workers as exempt employees even though their job duties are no different from those of the employees who report to them. Employees are also misclassified as exempt when their positions do not require independent judgment and discretion. Some workers are paid based on the number of hours that they work in a week rather than being paid a salary that doesn’t fluctuate. Finally, some workers are paid salaries of less than $455 per week, making them nonexempt.
Even in cases when an employee is correctly classified as nonexempt, employers may still violate the law by not counting all of the hours that were worked. This includes requiring workers to work off the clock, to work through unpaid breaks, to take work to perform at home that they are not paid for, to not pay workers for the time it takes them to put on or take off safety clothing and gear at the job site or to fail to count time spent on job-related travel.
Employers also sometimes make mistakes with calculating the person’s hourly rate. Some do not include all of the compensation in determining the wage by failing to count all wages, commissions and shift pay differentials or failing to count performance-based prizes and bonuses.
Contact Our Overtime Attorneys
If your employer has not paid you overtime pay that you believe you should have received, you should start by discussing it with your employer. When you do, tell them why you think that you are entitled to overtime pay for the hours that you have worked in excess of 40 during a work week. If your employer refuses to pay you overtime, you can choose to make a wage claim through the state’s administrative agency or to file a lawsuit in court. An attorney at Swartz Swidler may advise you about whether or not it appears that you have a valid claim. He or she may then help you to recover any overtime to which you should be entitled.