The Fair Labor Standards Act (FLSA) provides the guidelines for overtime pay requirements. Typically, when an employer requires or permits an employee to work overtime, that employer is obligated to pay the employee for their overtime work.

Employees who fall under the FLSA must receive overtime pay for any hours worked in excess of 40 hours. The FLSA does not require overtime pay for hours that are worked on weekends or holidays.

There is no limit provided by the FLSA on the number of hours to work in a workweek. However, different workweeks may be formed for employees or groups of employees.

The overtime requirement cannot be waived by an agreement between an employer and an employee. In addition, an employer is not permitted to block an employee from working overtime. An employer cannot require advance authorization for any overtime work.

An employer is not permitted to refuse to pay for work done overtime if it falls under the FLSA. employees have a right to compensation for hours which they have worked.

Overtime pay is required to be calculated based on the average hourly rate derived from the earnings worked during the workweek. Earnings can be based on a salary, commission, or a piece-rate.

Which Employees are Exempt from Receiving Overtime Pay?

If an employer is covered under the FLSA or the state’s local overtime law, all employees are entitled to overtime pay unless there is an exception which applies.

The following workers are exempt and, therefore, are not permitted to receive overtime:

  • White collar jobs who are paid on salary, including:
    • executives;
    • administrative professionals; and
    • professionals;
  • Independent contractors;
  • Volunteer workers;
  • Outside sales personnel;
  • Certain computer specialists;
  • Workers of amusement parks or county fairs;
  • Employees of religious conference centers or organized camps;
  • Employees of certain small newspaper;
  • Newspaper deliverers;
  • Workers in fishing operations;
  • Babysitters; and
  • Criminal investigators.

What are Overtime Pay Disputes?

The FLSA requires employers to compensate their employees with overtime wages if the employee works more than 40 hours in any given workweek. An employer still has the power to determine exactly what those overtime wages are, provided that the rate of pay is at least one 1.5 times the employee’s usual rate.

There are, however, some exceptions in certain industries where exempt employees are not entitled to any overtime pay unless their company policy states otherwise. Exempt employees were discussed in the previous section.

Overtime pay disputes are a specific type of wage and hour dispute which involves non-exempt employees who work more than a regular work day or a regular work week. A regular work day is typically 8 hours. A regular work week is typically 40 hours.

The types of employment disputes involve the amount of wages which an employee is paid or the number of hours which they worked. Some of 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 pay in order to coerce an employee to do something; and
  • An employer withholding overtime pay as retaliation against an employee who reported a wrongdoing or participated in an investigation of wrongdoing.

Overtime pay disputes may involve several issues, including:

  • 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; and
  • Overtime exemptions that apply to specific employees, as previously mentioned.

One of the most common overtime pay disputes involves an employer who owes their employee back wages. This may occur if the employer failed to pay their employees earned overtime hours.

This may also occur if the hours were incorrectly billed, such as hours billed as regular hours instead of overtime hours. These issues may be caused by:

  • Negligence;
  • Error; and
  • Intentional conduct, such as:
    • retaliation for harassment related issues.

How are Overtime Pay Disputes Resolved?

In order for an employee to recover for an employer’s violation FLSA rules in regards to overtime wages, an employee must prove:

  • An employer-employee relationship existed;
  • The employee’s position is not exempt from the FLSA rules governing overtime wages; and
  • The employer failed to meet the requirements as set forth by the FLSA.

In general, an employee must first attempt to resolve the issue internally and exhaust all available administrative remedies prior to taking any other action. This may include discussions and clarifications with the company’s human resources department or the company’s dispute resolution department.

If these steps do not resolve the situation, the employee will typically be required to make a claim with an administrative agency such as the Equal Employment Opportunity Commission (EEOC). Once a claim is filed, the EEOC or other agency will conduct an investigation to determine whether or not a violation occurred. A dispute involving federal issues such as discrimination will be investigated.

The investigating agency will then determine if any remedies are appropriate, such as awarding back pay to the employee or requiring the employer to change their policies in order to comply with overtime standards. If the employee does not find the agency’s decision satisfactory, they may request a right to sue letter from the agency that is conducting the investigation.

It is important to note that there is typically a 2 year statute of limitations in which an employee is required to file their claim or the case will be dismissed. If the employer did willfully withhold overtime pay, the statute of limitations is extended to 3 years.

After a lawsuit has been filed against the employer, there may be mediation sessions or negotiations prior to legal action in court. In some cases, an overtime pay dispute may lead to a class action lawsuit against an employer, especially if a large number of employees are affected by the same pay policies.

Are There any Defenses to Overtime Violations?

Yes, there may be defenses available to overtime violations. One of the most common defenses used by employers is that the affected employee is exempt from overtime pay requirements as provided by the FLSA. Even if an employee is exempt, however, they may be able to recover for breach of contract if overtime pay is a requirement pursuant to the company’s policy.

Another available defense in some jurisdictions is the good faith defense. An employer that was 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, however, the employer will be required to correctly pay overtime wages when they are due.

Do I Need an Attorney for Help with Overtime Pay Disputes?

It is essential to have the assistance of an employment law attorney for any overtime pay issues you may be facing as soon as possible in order to ensure the statute of limitations does not run. If your employer is withholding your overtime pay, your attorney can help you gather evidence to support your claim, advise you on the laws in your state, and assist you in obtaining the pay you are due.

Your attorney can also advise you regarding whether you are an exempt employee under the FLSA. in addition, your attorney will help you file any necessary administrative and court paperwork within the statute of limitations as well as represent you in court, if necessary.