Are You Being Underpaid For Overtime?

Your Rights Under the Federal Fair Labor Standards Act (FLSA)

FLSA Overtime

The FLSA requires that covered “nonexempt employees” must receive overtime pay for hours worked over 40 per workweek at a rate not less than one and one-half times the regular rate of pay.

What Is a Workweek?

The FLSA applies on a workweek basis. An employee’s workweek is a fixed and regularly recurring period of 168 hours — seven consecutive 24-hour periods. It need not coincide with the calendar week but may begin on any day and at any hour of the day. Different workweeks may be established for different employees or groups of employees. But, basically, a workweek is a full 7-day period.

An employer is not permitted to base pay upon an averaging of hours over two or more weeks. Normally, overtime pay earned in a particular workweek must be paid on the regular payday for the pay period in which the wages were earned.

The FLSA does not require overtime pay for work on weekend days, holidays, or regular days of rest, but the hours worked on such days counts toward the total number of hours worked in a workweek, and if the total hours worked in a workweek exceeds 40 hours, then the employee is entitled to time and one-half for all hours worked over 40 in that workweek.

Example 1: Let’s say that Employee’s regular workweek begins on Monday at 8 AM and ends on the following Monday at 8 AM (i.e., 7 consecutive 24-hour periods, equaling a total of 168 hours).  Assume that Employee works 40 hours, Monday through Friday from 8 AM to 4 PM each day, then works an additional 16 hours during the weekend. Employee is entitled to receive his regular hourly wage multiplied times 40 hours, plus one and one-half times his hourly wage multiplied times the 10 hours of overtime. Thus, if Employee’s hourly wage is $10 per hour, he would be entitled to 40 x $10 = $400, plus 16 x $15 = $240, for a grand total of $640. The same would be true if, in a workweek period, Employee worked 40 hours during the daytime hours, plus an additional 16 hours at night. It would be equally true if, during a workweek, Employee worked 40 hours during the daytime and a total of 16 additional hours of the combined night and weekend hours.

Example 2: Let us say that, during the week IN which Thanksgiving occurs, Employee works a total of 40 hours, 8 hours per day, Monday through Friday, including Thanksgiving day. The employee is only entitled to her regular hourly wage multiplied times 40 hours. She is not entitled to overtime for the hours worked on the holiday (Thanksgiving day). However, if employee works 40 hours between Monday and Friday, then works additional hours on the weekend and/or at night, she would be entitled to time and one-half for all hours exceeding 40 that she worked in the workweek, i.e., the period beginning Monday at 8 AM and ending the following Monday at 8 AM.

Example 3: Assume that Employee works Monday through Wednesday, from 8 AM through 4 PM each day, and then Friday, Saturday and Sunday, for 8 hours on each of those days. This would be a total of 48 hours of work for the workweek. Therefore, Employee would be entitled to her regular hourly wage times 40 hours for that workweek, plus 8 additional hours of pay at time and one-half of her regular hourly wage. If Employee’s regular hourly wage is $15 per hour, then the total pay to which she would be entitled for the workweek would be computed as follows: 40 hours x $15 = $600, plus 8 hours x $22.50 = $180, for a grand total of $780 for that workweek.

Example 4: Assume that Employee did not work at all on Monday or Tuesday, then worked 8 hours on Wednesday, 9 hours on Thursday, 7 hours on Friday, 6 hours on Saturday, 5 hours on Sunday between 7 PM and midnight, and 7 hours from 1:00 AM Monday to 8 AM Monday. That would be a total of 42 hours for the workweek. Employee would be entitled to 40 hours of regular pay and 2 hours of overtime pay. If her hourly wage was $20 per hour, then the total pay to which she would be entitled would be $20 x 40 = $800, plus $30 x 2 = $60, for a grand total of $860 for the workweek.

Hours Worked

“Hours worked” includes all the time during which an employee is required to be on the employer’s premises, on duty, or at a prescribed workplace.

What Does It Mean to Be a “Non-Exempt” Employee?

Only “non-exempt employees, and those employees who are not specifically “excluded” by the FLSA, are entitled to overtime pay under the FLSA. Exempt employees and excluded employees are not entitled to overtime pay under the FLSA.

Exempt Employees

With few exceptions, to be exempt an employee must (1) be paid at least $23,600 per year ($455 per week);  (2) be paid on a salary basis; and (3) perform exempt job duties. These requirements are outlined in the U.S. Department of Labor FLSA Regulations.

The new overtime regulations under the Fair Standards Labor Act will take effect January 1, 2020. Under the new rules, employees making less than $35,568 per year ($684 per week) are eligible for overtime pay and cannot be classified as exempt. Now is the time to make any necessary re-classifications.

Excluded Employees

Particular jobs may be completely excluded from coverage under the FLSA overtime rules. If your job or position is excluded, then you will not be entitled to overtime pay under the FLSA. There are two general types of complete exclusion. Some jobs are specifically excluded by the FLSA itself. For example, employees of movie theaters and many agricultural workers are not protected by the FLSA overtime rules. Also, certain jobs that are governed by some other specific federal labor law are not protected (i.e., they are excluded) under the FLSA. Generally speaking, if a job is governed by some other federal labor law, the FLSA does not apply. For example, most railroad workers are governed by the federal Railway Labor Act, and many truck drivers are governed by the Federal Motor Carriers Act and not the FLSA.

Are You a Non-Exempt, Non-Excluded Employee Who Is Entitled to Overtime Pay You Have Not Received?

The provisions above regarding exempt employees and excluded employees are just general guidelines. The FLSA is complicated and requires the expertise of qualified attorneys to determine your rights, if any, to overtime pay.

The Department of Labor has also put together valuable fact sheets that contain more information and examples on the matters discussed above: https://www.dol.gov/agencies/whd/overtime/fact-sheets

We at GunterFirm have your back, and we can tell you whether or not you qualify for overtime pay and whether your rights have been violated by not receiving it. If you are so entitled, we can help you recover the overtime that is owed to you, without any out-of-pocket costs to you. If we do not recover overtime pay for you from your employer or former employer, you owe us nothing. If we do recover overtime pay to which you are entitled, you still owe us nothing, because, under the FLSA, we can recover our costs and fees from the employer. For more information on FLSA and our services please visit: https://www.florida-employment-lawyer.org/employment-law/naples-employment-law/naples-overtime-unpaid-wages/

Senior partner, Jason L. Gunter, is Board Certified in Labor & Employment Law, and he and his capable staff are ready to fight for your rights!

Give Us a Call or Send Us an Email Today and, at No Cost to You, We Will Be Happy to Evaluate Whether You May Be Entitled to Unpaid Overtime Pay.

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