Since the 1930s, most U.S. employers have been required to pay their eligible employees that work more than 40 hours in a week overtime pay. This law was originally passed so that work would be spread among more people so that the unemployment rolls could be reduced. Today, overtime pay is no longer viewed as an economic stimulus. Now, it is viewed as a right. If you work more hours than 40 in a week, you should receive additional pay for the extra hours that you work.
Despite the law, some employers try to avoid paying their workers overtime pay. They might try to misclassify employees, miscalculate their pay, or use creative timekeeping methods. The attorneys at Swartz Swidler can help you to understand the overtime rules and what you should do if your employer is violating the overtime pay law.
How does overtime work?
The Fair Labor Standards Act is a federal law that mandates that covered employers pay their statutory employees one and one-half times their regular hourly pay for each hour that they work above 40 in a week. Most employers fall under the mandates of the FLSA. However, some employees are not entitled to receive overtime pay.
Exempt employees
Exempt employees are workers who are excepted from the overtime pay rules. This means that they are not entitled to receive overtime pay for working extra hours. Multiple types of workers are considered to be exempt under the FLSA, including seamen, newspaper delivery workers, people who work on small farms, and outside sales professionals.
Most overtime disputes happen because of the white-collar worker exemptions, which apply to administrative, professional, and executive employees. As long as these workers earn at least $455 in weekly salaries and perform job duties that require advanced degrees, are involved in high-level business decisions, and have managerial duties, they are exempt from the overtime pay requirements.
Overtime pay state laws
A majority of the states have their own overtime pay laws. If the state law offers greater benefits, the employers must follow the state law instead of the federal law.
Some states include different worker categories, and a few states have daily limits for the number of hours worked. New Jersey does not provide overtime pay rules for working in excess of eight hours in a day, however.
Common violations of the overtime pay laws
Employers who violate the overtime pay laws generally commit violations in one of three categories, including the following:
- Employee misclassification
- Failing to count all hours worked
- Miscalculating their employees’ hourly wages
Issues with misclassifying employees
Some employers violate the overtime laws by misclassifying employees as exempt managers when they have job duties that are the same as the duties of workers who report to them. Similar violations include misclassifying employees as white collar workers when they are not able to exercise independent judgment.
Employers also commonly violate the overtime laws by paying workers by the number of weekly hours they work instead of paying them a salary that does not fluctuate. They can also violate the law when they dock pay based on hours, productivity, performance, or other disallowed reasons. Paying employees salaries of under $455 per week and claiming that they are exempt also is a violation of the law.
Failing to count all of the hours that are worked
Some employers break the law by not counting all of the hours that their employees work. They might commit a violation by doing any of the following:
- Requiring workers to do work off of the clock
- Requiring workers to work during unpaid meal or rest breaks
- Allowing employees to do work at home without compensating them for it
- Failing to count the time that employees spend putting on or removing protective gear at their job sites
- Failing to count the time that workers spend traveling for their jobs
- Failing to count the time that employees spend on mandatory training sessions
Miscalculating employee pay
Some employers violate the overtime laws by not including all of the compensation when they calculate the wage of an employee. This might include failing to count all shift differentials, commissions, and wages when they calculate a worker’s hourly rate or failing to count all of the performance-based prizes and bonuses.
What to do
If your employer has failed to pay you overtime pay that you believe you are entitled to receive, you should begin by talking to your supervisor. Tell him or her why you believe that you should be paid overtime. Provide your supervisor with copies of any documentation that you have.
If talking to your employer does not work, you can do a couple of different things. You can go through the state’s administrative procedure for wage and hour claims. You can also bypass the state’s administrative process and file a lawsuit in court.
Before you head to court on a wage claim, it is best for you to speak with an experienced employment lawyer at Swartz Swidler. We can tell you whether your claim is viable or not. Schedule a consultation by filling out our online contact form.
