Overtime occurs when an employee works more than 40 hours in a workweek. It is important to be aware that the rules governing overtime are covered in the Fair Labor Standards Act (“FLSA”). The FLSA is a law passed by Congress in 1938, which sets the requirements for various aspects of employment, including:

  • Minimum Wage: Employers must pay employees at least federal minimum wage;
  • Overtime: Employers must pay employees overtime pay for hours worked beyond a 40 hour workweek;
  • Child Labor: Employers must follow the child labor laws established under the FLSA; and
  • Record Keeping: Employers must maintain various records of hours worked, wages paid, and other wage documents.

Once again, the requirements for overtime pay were established by the FLSA. The FLSA requires that employers pay employees who work more than 40 hours in a workweek time and a half overtime pay. For example, if an employee worked 50 hours in a workweek and normally made $10 per hour, the extra 10 hours worked would be paid at a rate of $15, instead of the normal $10 rate. Importantly, employers must always pay overtime pay, even if the overtime work was not authorized.

What Are Overtime Exemptions?

Overtime exemptions are exemptions under the Fair Labor Standards Act that allow for employers to not have to pay overtime pay to certain exempt employees. Exempt employees are typically employees that are not paid on an hourly basis, but rather paid salary. However, salaried employees may also receive overtime payments, similar to that of hourly employees.

The FLSA focuses on the duties and responsibilities of an employee when determining whether there is a requirement for the employer to pay overtime. For example, employees that are more independent, make managerial decisions, or hold a professional license (doctors, engineers, school teachers attorneys) would likely be considered exempt employees.

Once again, FLSA exemptions are generally reserved for employees who perform relatively high-level work or make a certain salary, such as over $100,000.00. In order to find out if your specific position is exempt or nonexempt, it is important to either review the language of the FLSA or consult with an employment law attorney.

What Are Common Violations of Overtime Wage Requirements?

It is important to note that employers may not refuse to pay overtime wages to nonexempt employees. Once again, if an employee works over 40 hours in a workweek, whether authorized by the employer or unauthorized, that employee must be paid overtime wages as required under the FLSA. However, this does not mean that the employer cannot take disciplinary action against the employee for not getting pre approval for working overtime or violating company policy regarding overtime work. An employer can terminate an employee for violating company policy for working overtime, but they must still pay that employee for overtime worked.

Under the Fair Labor Standards Act, an employee must show the following in order to recover for an employer’s violation of failing to pay overtime wages:

  1. The employee must first prove that an employee-employer relationship existed;
  2. The employee must then prove that they are a nonexempt employee under the FLSA; and
  3. The employee must show that the employer failed to pay them overtime wages as required under the FLSA.

Common violations of the FLSA by employers include:

  • Withholding overtime wages for an employee who was unauthorized to work overtime. Importantly, there are some exceptions for refusing to pay overtime pay under the FLSA to employees that worked in secret;
  • Calculating overtime worked based on a monthly or bi-weekly period, instead of the 40 hours standard set out in the FLSA;
  • Not including travel time in the calculation of overtime;
  • Falsely believing that all salaried employers are exempt under the FLSA; and
  • Attempting to have nonexempt employees waive their right to receive overtime. Employees may not waive their right to receive overtime pay under the FLSA.

What Are the Penalties for Withholding Overtime Pay?

As an employer, if you withhold overtime pay from an employee, then you may face a variety of penalties including:

  • Back Pay: The most common penalty for withholding overtime pay is having to pay the withheld overtime pay;
  • Liquidated Damages: The Department of Labor (“DOL”) may impose liquidated damages, which may double or multiply the amount of backpay that an employer failed to pay;
  • Statutory Penalties: Employers may also have to pay civil penalties of up to $1,000 per each overtime pay violation; and
  • Attorney Fees: If the employee hires an attorney to represent them in their civil claim for unpaid overtime wages, the employee may also recover their attorney fees.

As an employee you cannot immediately file a civil lawsuit against an employer who withheld overtime pay from you. Before you are able to sue your employer, you must first make a wage claim with the Equal Employment Opportunity Commission (“EEOC”).

After filing an overtime wage violation claim with the EEOC, the agency will then conduct an investigation and determine what remedies if any are appropriate. However, if the agency’s investigation does not result in a favorable decision for the employee, they may then obtain a right to sue letter and initiate a civil lawsuit against their employer.

Should I Hire an Attorney for Overtime Wage Disputes?

As an employee you have a federal right to receive overtime pay for any hours worked over a standard 40 hour workweek. Thus, if you have been denied payment for overtime hours worked or an employer is withholding your overtime pay, it is in your best interests to consult with a well qualified and knowledgeable employment attorney in your area.

An experienced employment attorney will be able to help guide you through the administrative process of filing a wage claim. In addition, they will be able to help you initiate a civil lawsuit against your employer for payment of any and all withheld overtime pay. Finally, an attorney can represent you in court, as necessary.