Employers still have the power to determine what those exact overtime wages are, provided that the rate is at least one and one half times the employee’s usual salary.
There are some exemptions in certain industries, and these exempt employees are not entitled to any overtime pay unless their company policy states otherwise. Some examples of exempt employees include those who work in retail, farming and agriculture, and sales.
Overtime pay disputes are a specific type of wage and hour dispute involving non-exempt employees who work more than a regular work day or work week. A regular work day is generally eight hours, while a regular work week is typically forty hours. These employment disputes involve the amount of wages an employee is paid, or the amount of hours they worked.
Some of the more common violations of overtime requirements include:
- An employer failing to pay overtime in general;
- An employer failing to pay an employee at the correct overtime rate, as in charging normal hourly rates for work done overtime; and
- An employer withholding overtime to pay in order to coerce an employee to do something, or as retaliation against an employee who reported a wrongdoing or participated in an investigation of wrongdoing.
Overtime pay disputes can involve several issues. Some examples of this include:
- The rate at which the employee is paid vs the rate they are supposed to be paid;
- The number of hours actually worked;
- Whether or not the employee is actually entitled to overtime pay;
- Tax reporting and other administrative issues; or
- Overtime exemptions that apply to specific employees, as previously mentioned.
The most common overtime pay dispute involves an employer owing their employees back wages, and can occur if the employer failed to pay their employees their earned overtime hours.
This can also occur if the hours were billed incorrectly, such as regular hours instead of overtime hours. These issues may be caused by negligence, error, or intentional conduct, such as retaliation to harassment related issues.
In order to recover for an employer’s violation of FLSA rules in regards to overtime wages, the employee must prove:
- An employer-employee relationship existed;
- The employee’s position is not exempt from the FLSA rules on overtime wages; and
- The employer failed to meet the requirements set forth by the FLSA.
In general, employees must first attempt to resolve the matter internally and exhaust all available administrative remedies before taking any other action. This could include discussions and clarification with the company’s human resources department, or the company’s dispute resolution department.
If that does not resolve the situation, the employee will typically need to make a claim with an administrative agency such as the Equal Employment Opportunity Commission (“EEOC”).
Once a claim has been filed, the agency will usually conduct an investigation to determine whether there was indeed a violation. Disputes involving federal issues such as discrimination will especially be investigated.
The agency will then determine if any remedies are appropriate, such as such as back pay being awarded to the employee or the employer being required to change their policies in order to be in compliance with overtime standards.
If the employee does not feel that the agency’s decision on the matter is satisfactory, they may request a right to sue letter from the agency conducting the investigation.
It is important to note that there is generally a two year statute of limitations in which an employee must file their claim, or their case will be dismissed. If the employer did indeed willfully withhold overtime pay, the statute of limitations for filing is extended to three years.
Once the lawsuit has been brought against the employer, there may be mediation sessions and negotiations before legal action in court. In some cases, overtime pay disputes may result in a class action lawsuit against the employer, especially if a large number of employees are affected by the same pay policies.
One of the most commonly-utilized defense to overtime violations by employers is that the affected employee is exempt from the overtime pay requirements set by the FLSA rules. However, even if an employee is exempt, they may be able to recover for breach of contract if overtime pay is required by the company’s policy.
Another defense in some jurisdictions is the “good faith” defense. Employers that were honestly unaware that the affected employee was due overtime pay, or was not exempt from overtime pay, may be forgiven for their ignorance. In the future, the employer will be required to correctly pay overtime wages when required.
If your employer is withholding your earned overtime pay, you should absolutely consult with a well qualified and knowledgeable employment law attorney. An experienced employment law attorney can help you gather evidence to support your claim, and ensure you understand your state’s specific laws regarding the matter.
Further, they can help you determine whether you are exempt under the FLSA rules. Additionally, they can file all necessary administrative and court paperwork within any applicable statutes of limitation, and represent in you court as needed.