Your Unpaid Overtime attorney in San Diego

 

Unpaid Overtime

Recent changes in overtime laws have resulted in employers making errors in the payment of overtime to their employees. Some errors result from employers misclassifying non-exempt employees as exempt. Or, sometimes, employers look for ways to avoid paying employees overtime they are legally entitled to.

Overtime laws divide almost employees into two categories:  employees who are not eligible for overtime pay called "exempt" employees; and employees who are entitled to overtime pay called "non-exempt" employees. Some errors result from employers misclassifying non-exempt employees as exempt. Exempt and Non Exempt Employees receive different over time treatment. For example:

Non-Exempt Employees

Non-exempt employees are entitled to overtime pay for all hours worked over 40 in a workweek even if the employee is paid a salary.  Non-exempt employees who are paid hourly are entitled to overtime pay at a rate equal to time-and-one-half the employee's regular rate of pay. 

Exempt Employees

Exempt employees are not entitled to overtime pay.

Factors to consider whether you are Exempt v. Non-Exempt

Whether an employee is "exempt" or "non-exempt" depends on two main factors: 

1.Whether an employee is paid on a salary basis (as opposed to hourly); and

2.Whether the job duties and responsibilities an employee actually performs fall within one of the law’s recognized overtime exemptions (e.g. executive, administrative, professional, outside sales, computer professional, etc.). 

With the exception of certain computer professionals and others, an employee both must be paid on a salary basis and his/her actual job duties must satisfy one of the laws recognized overtime exemptions to be exempt from overtime law requirements.  That means that almost all hourly employees and many salaried employees may be entitled to overtime pay.

Recognizing Common Overtime Pay Violations

Employers often take advantage of the many different aspects of federal and state law to deny overtime pay.  These tactics are not limited to misclassifying an employee's overtime status; they may involve employers intentionaly seeking ways to avoid paying overtime.  They may involve not paying an employee for all hours worked.  Some examples of the common signs of overtime pay violations:

1. Your employer recently reclassified your overtime status.  You're now eligible for overtime pay, but your job duties didn't change.

You may be entitled to unpaid overtime wages for the period of time prior to your reclassification. You may be entitled to unpaid overtime wages for a two or three-year period before your reclassification. Further, because your duties didn't change, your overtime reclassification may amount to a legal admission by your employer that your employer previously misclassified your overtime status.

2. You're not entitled to overtime pay because you're salaried.

Some emlployers will tell their employees that they are not entitled to overtime because they are “salaried”. Many employers--especially smaller employers--mistakenly believe that employees are not entitled to overtime pay if an employee is paid salary rather than hourly.  Just because a non-exempt employee receives a salary does not deprive him/her of the right to overtime pay.  Under overtime laws, an employee must be paid on a salary basis and perform duties satisfying one of the legally recognized overtime exemptions (for example, executive, administrative, professional, outside sales, etc.) to be ineligible for overtime pay.

3. You would be eligible for overtime pay except that you're forced to work "off the clock."

Working "off-the-clock" includes being asked to perform work before clocking-in, during lunch breaks, and after clocking-out.  Some employers require employees to clock out and then to to finish their work afterward. Often a supervisor may say something like "You can't leave until you finish your work but the company is not paying for any additional time. You should have completed your work during your shift." This also may include work employees perform at home.  Under overtime laws, employees are entitled to wages for all hours worked.

4. You're denied overtime pay because the overtime work was not pre-approved.

Some employers overload employees with work but refuse to pay overtime unless the overtime is pre-approved.  Often, an employee's supervisor is not available to pre-approve the employee's overtime request. Nonetheless, the employer expects the employee to complete the work to meet a deadline or other business needs.  Overtime laws require the employer to provide pay for all hours worked in a workweek over 40 that an employer knows the employee works overtime or reasonably should know, regardless of whether prior approval is obtained from the employee’s supervisor.

5. Your employer pays "straight time" for hours worked over 40, but not time-and-a-half.
Employees who are entitled to overtime pay should be paid at least time-and-a-half an employee's regular rate of pay.  For example, if you make $20.00 per hour, you should receive $30.00 per hour for overtime hours. Some employers, however, only pay employees their "straight time" rate ($20.00 per hour in the example) for hours they work over 40. Even though the employer is paying for hours worked over 40, the employer is not complying the overtime law because the employee is being denied the full rate of overtime pay.

6. Your employer fails to pay you for all hours worked.
Employers often fail to count all hours an employee works when calculating the employee's wages. Sometimes, this is intentional (such as when an employer pays an employee eight hour per day regardless of the hours worked).  Sometimes, it's not.   Under the overtime laws, "work" includes any labor benefiting an employer and may include work at home; work "off the clock;" work performed during lunch periods; prep work before or after a shift such as donning and doffing safety equipment; and attendance at mandatory work-related training.

Employees Must Act Promptly to Recover Unpaid Overtime

Statues governing overtime law impose strict time restrictions on recovering overtime wages.  This means that whether an employee may recover overtime pay and the amount an employee may recover is directly affected by how long an employee waits before filing an overtime lawsuit.

Therefore, act immediately if you believe you may have denied overtime pay to which you are entitled. Please call Michael P. Sousa today for a free consultation regarding your facts. Call 858 453-6122 for assistance in receiving the overtime you are entitled to.