Overtime Violation Lawsuit Attorneys
Our firm is not only dedicated to protecting a person’s right to work in a safe workplace, but also to protecting a person’s right to earn all overtime wages required by law. Our overtime violation lawyers are currently investigating possible overtime lawsuits regarding unpaid overtime pay, misclassification of workers and other violations of overtime pay laws.
Why Should I File an Overtime Lawsuit?
Though it may seem like overtime pay is not very much, it can make a big difference. Even if you were not paid overtime for just a few hours each week, that amount can add up over time and translate to high dollar amounts. Our unpaid overtime lawyers can help you get all the money you deserve.
Under the law, when a company is found to be in violations of overtime wage laws, they are generally required to pay the employee double the amount of back overtime wages as a penalty for violating the law. Also, when a lawsuit is successful, the violating companies are usually required to pay the attorney’s fees and costs in addition to the overtime penalties.
The law permits employees to seek unpaid overtime or minimum wages and corresponding damages pursuant to a type of class action known as a collective action.
Not only does filing a lawsuit allow you the opportunity to stand up for your rights, it can help you recover valuable overtime pay that you are owed by law. It can also help you send a message to these companies that what they did was not right, and that they should not continue to cheat people out of a fair day’s wage for a fair day’s work.
To see if you have an overtime pay lawsuit, call us at 866-495-1255 or take our online survey.
Overtime Pay Laws and the Fair Labor Standards Act: What It Means To You
The Fair Labor Standards Act (FLSA), enacted in 1938, is the federal law that governs minimum wages, maximum work hours, overtime pay, equal pay and child labor standards. Its purpose is to protect employees from oppressive working hours and labor conditions and to ensure that American workers receive a fair day’s pay for a fair day’s work. The law applies to virtually all employers and their employees, except for those who are specifically exempt.
Generally, the FLSA applies to a variety of work issues, including:
- Many salaried employees are owed overtime pay if they work more than 40 hours in a week. Employees are sometimes misled into believing that only hourly wage employees get overtime. Not true. While hourly employees are almost always due overtime pay, salaried and commissioned employees may also be due overtime. It just depends on the job duties.
- Many so-called “independent contractors” are actually due overtime when they work more than 40 hours per week under federal law. Independent contractor misclassification cases are common in the construction industry. Even if a worker signs a contract saying he is an independent contractor and deducts independent contractor type costs on his tax return (i.e. depreciates equipment, writes off expenses), federal law says that worker may still be an “employee” for purposes of receiving overtime wages depending on the facts.
- If an employer requires or permits an overtime eligible employee to work “off-the-clock,” such as pre-shift work preparing for the workday (e.g. starting the computer, reading e-mails, preparing tools or equipment), work during an unpaid lunch period, post-shift work closing out the workday (e.g. finalizing paperwork, sending reports), or work from home, then the employee may be entitled to overtime pay for that time worked.
- When an employer owes a worker back overtime, the employee is generally due twice the back overtime wages not paid for up to a preceding three year period. For example, if an employer owes $15,000 in back overtime for the time period between 2011 and 2014, then the total amount owed with penalties known as liquidated damages is generally $30,000. Additionally, legal fees and costs have to be paid by employer who owe employees back overtime wages.
- If an employer owes back overtime wages, but failed to keep an accurate record of the weekly overtime hours worked by the employee, then federal law states that the employee gets to make a reasonable estimate of those hours which must be accepted.
- Employees can bring back overtime wage cases as a type of class action known as a “collective action.”
- Federal law protects workers from retaliation when they bring an overtime or minimum wage lawsuit. As long as the employee has a good faith belief that they are owed the back overtime or minimum wages, the employer is prohibited from retaliating against them even if the lawsuit is not successful. So, win or lose, an employee cannot be fired, demoted or harassed for filing an overtime or minimum wage lawsuit.
- Federal law provides that immigration status does not matter when it comes to overtime wages. So, employees, whether documented or undocumented, are owed overtime wages when they work more than 40 hours per week.
- In addition to federal overtime wage laws, many states have wage protection laws which provide additional protections and damages above that offered by federal law.
Regarding overtime pay, the FLSA requires that employers pay at the rate of one and a half times the employee’s regular hourly rate for time worked over 40 hours in a work week. Unfortunately, employers have abused the FLSA exemptions. For years, some employers would call employees exempt from the FLSA even though they weren’t. Just because you are paid a salary does not mean you are exempt. In order to be exempt, an employer has to prove that an employee meets one of the few FLSA exemptions, such as executive, administrative, professional, etc. Each of these exemptions has rigorous requirements and tests, and it is the employer’s burden to prove that the exemption applies. Otherwise, they must pay overtime.
How Does Overtime Work?
When you work more than 40 hours in a seven day workweek, you are entitled to overtime pay unless the employer proves you are exempt. This means that if you work over 40 hours, you should be paid at a rate of one and one half times your regular rate for each hour worked in excess of 40.
For example, if you are paid $15.00 an hour, but your employer requires or permits you to work “off-the-clock” hours for which you are not paid (e.g. pre-shift safety meetings, answering work emails from home, completing end of the day paperwork), here is what your weekly pay should look like when working overtime:
|Weekly Unpaid Hours Worked in Excess of 40||Hourly Rate||Weekly Overtime Pay Owed||Weekly Amount Owed with Liquidated Damages|
Even if you are paid a salary, that does not automatically mean that you are exempt from overtime pay. In some instances, you are entitled to overtime by law. Here is what a salaried employee who should be paid overtime would typically be due when the salary is intended to cover a 45 hour workweek. Hours 40 to 45 are typically paid at one-half the regular rate while hours over 45 are paid at time and one-half the regular rate.
|Salary||Weekly Hours||Regular Rate||Weekly Overtime Pay Owed||Weekly Amount Owed with Liquidated Damages|
Five Common Violations of Overtime Pay Law
Oilfield workers are frequently not paid all overtime wages owed. Baron & Budd recently won a jury trial on behalf of approximately 110 oilfield truck drivers and six oilfield dispatchers who worked many unpaid overtime hours. The employer claimed that the drivers were exempt (i.e. not due overtime) under the Motor Carrier Act Exemption, and that the dispatchers were exempt under the Administrative and Executive Exemptions. However, a jury disagreed with the employer and awarded the drivers 18 unpaid overtime hours per week and the dispatchers four overtime hours per week over a period of several years. The jury also found that the employer had “willfully” violated the law which resulted in additional damages being owed.
While some oilfield companies misclassify their employees as “exempt,” as was the case with the oilfield trial explained above, many other companies properly label their oilfield workers as non-exempt (i.e. due overtime), but allow or require them to work off-the-clock without pay. Examples of typical off-the-clock work that should be paid include pre- and post-shift safety meetings, travel to or from the truck yard to a loading site or well site, returning empty trailers to the main truck yard, pre- and post-shift vehicle maintenance, work during unpaid lunch breaks, which can include simply requiring the employee to stay with the truck while eating lunch, etc.
Again, even salaried oilfield workers may be due overtime. Similarly, oilfield workers, such as drivers, that are paid a percentage of the load, or by the mile, may still be due overtime. The law provides a way to determine the “regular hourly rate” regardless of the method of payment.
Oilfield job titles that sometimes experience unpaid overtime include roughnecks, floor hands, derrick men, roustabouts, truck drivers, dispatchers, field service engineers, mud engineers, tool pushers, technicians, tankermen and other field service workers who provide service to the company’s customers or assist the company in its operations. Both land based and offshore oilfield workers may be due overtime pay. More oil and gas industry jobs may be affected than the examples listed above.
In most cases, employers pay an employee a bonus for work performed in the past. If that’s the case, then the bonus may need to be included in retroactively determining your overtime rate. Some employers fail to do this. For example, if an employee works at $20 per hour for 50 hours, then the employee would be typically owed a total of $1,100. That’s because $800 (40 hours times $20 per hour) plus $300 (10 overtime hours at $30 per hour) equals $1,100. Now, what if an employer gives a non-discretionary bonus at the end of the week, or month, or year? In that case, the bonus should be figured in and your hourly rate of $20 per hour should be adjusted upwards, which means the overtime rate would be even higher. Many employers give bonuses at the end of the week, or month, or year. Yet, they fail to go back and readjust their overtime payments for that period of time. This means they underpaid their employees. If you received a bonus and received overtime, you may very well have a claim.
Bona fide independent contractors are not entitled to overtime pay under the FLSA. Only employees are. But just because an employer calls someone an independent contractor does not make it so. Even if a worker signs a contract stating that he/she is an independent contractor and deducts business expenses on their tax return, they may still be an “employee” entitled to back overtime wages and other damages. This is because law is clear that a worker cannot contractually agree to waive his or her right to overtime pay, and if the so-called “independent contractor” is “economically dependent” on the business he or she works for, that there is an employer/employee relationship for purposes of the overtime pay law. Most Courts apply a five factor test which includes:
- the degree of control exercised by the alleged employer;
- the extent of the relative investments of the worker and the alleged employer;
- the degree to which the worker’s opportunity for profit or loss is determined by the alleged employer;
- the skill and initiative required in performing the job; and
- the permanency of the relationship.
Some businesses pay a salary to their assistant manager-level employees without paying them overtime. But in order to qualify for the “executive exemption” from overtime pay, an assistant manager must meet each of the following four tests: (1) she must be paid a salary of at least $455 per week, (2) her primary duty is management of the enterprise or of a customarily recognized department or subdivision; (3) she must customarily and regularly direct the work of two or more other full-time employees or the equivalent; and (4) she must have the authority to hire or fire, or make suggestions and recommendations as to hiring, firing, advancing, promoting, or other work status changes that are given particular weight. In stores where there are typically a manager, assistant manager, and a few hourly employees on duty, it is unlikely that both the manager and the assistant manager will both qualify for the exemption. If the assistant manager’s job responsibilities do not meet the “executive exemption” tests, then she is entitled to overtime pay.
Most sales employees are entitled to overtime pay regardless of whether they are hourly, salaried, commissioned, or some combination of the foregoing. So, contrary to common misperception, even commissioned employees may still be due overtime.
Generally, unless the employer can prove that the sales employee meets the “outside sales” or “retail establishment” exemptions, the employee is due overtime. It is important to note that sales employees who primarily work from their home office making sales by phone, mail, or internet are generally not “outside sales” and therefore may be due overtime pay even though they do not work at the employer’s business location.
Do I Still Have to Be Employed by the Company to File an Overtime Lawsuit?
No. Under the FLSA, current and former employers have the right to file a lawsuit regarding unpaid overtime wages. The law automatically allows recovery for two years preceding the date the lawsuit was filed and forward that can be extended to a three-year period for willful violations. For example, in a lawsuit filed on January 1, 2014, the employee could recover back wages and damages for the time period of January 1, 2012 forward, and if the employer’s violation was willful, then the time period is January 1, 2011 forward. Contact our law office to speak with an overtime lawyer who can discuss your potential case.
Can My Employer Fire Me for Filing an Overtime Lawsuit Against Them?
It can be a little scary to think about filing a lawsuit against your current employer. It seems like this would be the perfect way to instantly lose your job –and your source of income –but the law addresses that concern. The FLSA protects employees from retaliation by “any person.” This includes protections from retaliation by your employer or future employer for having filed an overtime lawsuit. The drafters of the overtime law knew that it would not have any teeth unless employees were protected from such retaliation by current or future employers. If an employer retaliates against an employer for filing an overtime violations lawsuit, such as firing them or discriminating against them, the employer can face serious penalties. An experienced overtime lawsuit attorney can discuss the details of your case to determine what action you need to take.
Jobs With Common Overtime Violations
If you see your job title on this list – or even if you don’t – and think that your employer may have violated FLSA law, call us at 866-495-1255 or complete our online survey for a complimentary case evaluation.
- Oilfield Workers
- Hotel and Service Industry Employees
- Call Center Workers
- Fast Food Workers
- IT/Computer Technicians
- Assistant Store Managers
- Administrative Assistants/Secretaries
- Employees Improperly Labeled “Independent Contractors”
- Employees Paid Commissions
- Construction Workers
Your job security is of our utmost concern and we will not do anything that jeopardizes your ability to earn an income. Additionally, you should know that federal law prohibits an employer from retaliating against an employee for seeking overtime or other wages they are due under the Fair Labor Standards Act.