Overtime Pay: How do I Know if my Employer Owes me Money?
October 5th, 2009. By Kristine B
Yeah, it sounds like a bad Whitney Houston flashback…”How will I know if he…” Whoa there—back on topic. Overtime pay? Good question. So that’s the focus of this week’s Pleading Ignorance.
If you’ve opened a newspaper lately—or looked at virtually any news website including our own recent post on 61 companies with OT pay issues—you’ll know one of the major issues in US courts right now is Overtime Pay—or more aptly, missing overtime pay from a lot of folks’ paychecks. What you might not have known is that overtime laws in the US are not as clear-cut as many people think. In fact, if you’re not getting overtime pay there’s still a chance you should be. How’s that? Read on…
Overtime in a Nutshell
Basically, overtime occurs when a person works more than a set amount of time either daily (over 8 hours in a day), or weekly (over 40 hours in a week). Overtime is regulated by the Fair Labor Standards Act (FLSA) and by state laws. When both the state and the FLSA cover overtime, employers must go with whichever one holds the employer to the highest standards—essentially meaning whichever one provides the most pay to the employee (that’s good news for the employee).
When an employee works more than 8 hours in a day or 40 hours in a week—and let’s be honest, who hasn’t worked that much at some point—the employee is supposed to get 1.5 times her regular wage (that’s the “time and a half” everyone’s always talking about).
So, let’s say an employee makes $10 an hour and works 44 hours in a week. The employee should be paid $10 for the first 40 hours and $15 for the additional 4 hours.
Seems straightforward, no? But it’s not, because not everyone is eligible for overtime pay and that is where things can get kind of tricky, to put it mildly.
Exempt and Non-Exempt Employees
The FLSA says that not everyone is entitled to overtime pay. Confusingly enough—of course the government won’t just be straightforward—they have phrased it so that Exempt employees are NOT eligible for overtime pay and Non-Exempt employees ARE eligible for overtime pay.
Got that? I’ll say it again. If you are not exempt—aka “Non-Exempt”—from overtime pay, you are actually eligible to be paid overtime. If you are Exempt from overtime pay, well, you won’t be getting any extra dollars for all those extra hours you work.
Now, figuring out if you are exempt or non-exempt is a battle-and-a-half, so pay close attention here (although I like to think you’ve been paying close attention all along).
There are three questions to ask to determine if you are eligible for overtime pay. In order to be Exempt from overtime pay (no extra money for you) you must answer “Yes,” to all three questions. Not just one or two of them, but all three. Seriously. ALL THREE.
1) Do you make at least $23,600 per year (or $455 per week)?
2) Are you paid salary?
3) Are your main job duties administrative, professional or executive?
If you said “Yes” to all three of those questions, then you are probably Exempt from overtime pay. If you said “No” to at least one of them, then there’s a good chance you should be getting overtime pay.
Now, here’s the other tricky part (and the reason I used “probably” in that earlier paragraph)—the question about job duties is not straightforward. A lot of people are given a fancy-schmancy job title—like Executive Administrative Manager in Charge of Facilitating Customer Relations, or some such thing. But when you look at what their actual job responsibilities are—maybe they’re customer service people working the phones at a call center—they should probably be getting overtime pay, too. They may think they’re “executive” or “administrative”, but really, they’re not, it just sort of looks like they are from their job title.
But, that’s for another time. In fact, that’s for the next Pleading Ignorance blog post, when I go more in-depth into what the Exemption tests are. Don’t worry; there won’t be a test at the end of this. But, there could be more money for you, if you discover that you should be getting overtime pay and are not.
Next time, Understanding the Exemption Questions: Why you shouldn’t just count on what your employer calls you to figure out whether you’re entitled to some OT pay; and why being “on salary” doesn’t necessarily mean you’ve kissed your overtime pay eligibility goodbye.
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so is what my employer doing legal then? our work shift starts at 6:00am but my employer tells us we must clock in early because clocking in at 6 on the dot would make us late to relieve the other shift. so we have to clock in early but no more then 12 minutes before the hour and then when our shift ends most employees clock out 8 minutes late because we do security so we have to wait to be relieved from our post etc but our employer also says we are not allowed to clock out any later then 12 minutes past the hour otherwise its illegal over time so if i clock out 2:12 I GET WRITTEN UP. i think i understand rounding but im confused also because i always clock in 5 minutes early every day 5:55 am and immediately start working and then clock out late every day 2:08 pm but my pay checks are always a straight 8 hours never 8 hours and 10 minutes etc. it doesnt matter what time i get there i only get paid for 8 hours even though im not on salary. i guess this would make since if an employee clocked in late and it would round the time up but i clocked in at 6 on the dot and was deducted 1/10th pay and written up for clocking in late. im not sure if it matters but we get a 20 minute lunch break paid because we are still considered working because we have our radios on us and arent allowed to leave the property. so is my employer rounding time or trying to get by on the de minimis rule because every morning we have to clock in check out our radios and keys or a vehicle and sometimes report to a guard shack so i guess they figure come in early to do those things and to relieve the other shift but then dont pay us for them?
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admin Reply:
November 19th, 2009 at 3:10 pm
Hi Jessica, Thanks for your comment! Wow–it sounds a little fishy to me. I'm not too familiar with "rounding" for hourly employees…so my best suggestion is that you might want to have a lawyer review your situation. You can do that here–it's free to you, and no obligation to do anything. There's a form to fill out–it's here. That way a lawyer who specializes in this type of thing–overtime pay lawsuits and law–can determine what's going on in your situation. Hope this helps–let us know how you make out; -Abi
[Reply]
admin Reply:
November 19th, 2009 at 3:10 pm
Hi Jessica, Thanks for your comment! Wow–it sounds a little fishy to me. I'm not too familiar with "rounding" for hourly employees…so my best suggestion is that you might want to have a lawyer review your situation. You can do that here–it's free to you, and no obligation to do anything. There's a form to fill out–it's here. That way a lawyer who specializes in this type of thing–overtime pay lawsuits and law–can determine what's going on in your situation. Hope this helps–let us know how you make out; -Abi
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I do not know if you will still look at this. However, when I pplied for my job they ahd it listed as a graphic designer with all these specialty needs. However, after being hired I realized this is not so. in the company our title changed to Image coordinator/processor. However, they still advertise for this position as a Graphic Designer.
Anyway. I fall under production work. There is nothing overly skilled about my job. I remove backgrounds from images (Like you would see on any ecommerce site. You notice the procducts are removed from backgrounds and cleaned up. That is what I do all day long.
My company forced me off site (which I have emails to prove it) After forcing me offsite they demanded I do more work then I do in my normal 8/9 hour day at work. So I have been. they also recently sent another co -worker in my situation an email that states we work whenever and however they want and that there are no real shifts. So If I work and 11 hour day to make my quota (on site 8 hour employees have a lower quota then us.) they can still contact us and tell us to do more.
This happened this week with the other employee. she worked a 1pm -12 am shift (on normal day our base day is 10 hours). Becasue there so many images left over to do she worked from 12am to 1pm with about with a total of 4 hour put a side for eating and very little sleep. They contcacted her at about 3 saying she needed to do a rush folder. She got the message around 5 and told them the what happened.
She was told that we don't have shifts. Whenever there is something that needs to be done we have to do it. In the end She ended up doing the folder, and I helped her with half of it.
What makes it worse is that she was sick and is headed to the hospital today to get checked up.
YES, it is in the email. She states that she is also not feeling well. of course they didnt' care.
[Reply]
admin Reply:
May 10th, 2010 at 11:48 am
Hi Simone, Your best bet on this is to fill out a claim with the details of your situation–it’s free–a lawyer can then review and see if you may have a case. It’s not completely clear by your comment whether you’re a contract (ie freelance or independent contractor) or full-time employee (ie on staff)–and depending on which you are, there are considerations for each. A lawyer can best help navigate your specific situation.
[Reply]
admin Reply:
May 10th, 2010 at 11:48 am
Hi Simone, Your best bet on this is to fill out a claim with the details of your situation–it’s free–a lawyer can then review and see if you may have a case. It’s not completely clear by your comment whether you’re a contract (ie freelance or independent contractor) or full-time employee (ie on staff)–and depending on which you are, there are considerations for each. A lawyer can best help navigate your specific situation.
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I've been working in my current position for three months now at a University. My job title includes the word "Coordinator" in it but I'm classified as non-exempt, temporary, part-time. When I started my job I was working 56 hours a week and 112 hours per pay period but only getting a paid for 80 hours a week. I was told that I was accruing leave and/or overtime and that I would be paid for such hours after a cycle of five months, after which I would receive and extra check for the amount of overtime hours I accrued. My pay statements only ever show up to 80 hours per pay period in net pay and hours and gross pay never shows overtime accrual or leave time. The reports on the online time and pay system show that I've accumulated over 55 hours of Comp/OT but I'm still not getting paid for that. I'm not sure if this is legal considering every source I've referenced states that employers cannot hold back overtime pay and that I need to be getting my overtime pay during the pay period that I have worked. I honestly didn't think anything of the "five month" system but now I realize that I can't really afford to wait every five months to get my money.
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admin Reply:
May 24th, 2010 at 2:52 am
Hi Nicole, It can be tricky to navigate the in's and out's of overtime pay…who qualifies, what types of jobs or work are classified as non-exempt, etc…it may be helpful for you to fill out a claim form with your details and have a lawyer review it to see if you might have a case here (it's free)
[Reply]
admin Reply:
May 24th, 2010 at 2:52 am
Hi Nicole, It can be tricky to navigate the in's and out's of overtime pay…who qualifies, what types of jobs or work are classified as non-exempt, etc…it may be helpful for you to fill out a claim form with your details and have a lawyer review it to see if you might have a case here (it's free)
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Hi I am hoping for little advice. My husband and I are salaried employees and have been at the same job for 10 years. We were sold 4 years ago. The new employers entered a written contract with 2 weeks paid vacation a year. We are more than 80 hours a week and have not received a vacation or the monies. We have been asking for it for the past 7 months and have been put off with one excuse or another. I have health issues and they changed our deductable to 1,000 and the money would be helpful.How can I get the money we are owed.
[Reply]
admin Reply:
May 24th, 2010 at 2:47 am
Hi Peggy, Your best bet is to fill out a form with the details of your situation for a lawyer to review (it's free) to see if you may have a case that a lawyer can help you with;
[Reply]
admin Reply:
May 24th, 2010 at 2:47 am
Hi Peggy, Your best bet is to fill out a form with the details of your situation for a lawyer to review (it's free) to see if you may have a case that a lawyer can help you with;
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Thanks for your article. I have a question about legality of a potential employer’s actions. I interviewed with a home-based maintenance company. They advised me that all employees are required to get there every day at 7:30AM and help out around their farm (feed their chickens, pigs, etc) and also help to come up with the work plan for the day (which projects the different maintenance crews will tackle that day).
The employees are not allowed to clock in until 8AM; which, to me, means everyone is working 2.5 hours of overtime a week without compensation. Is this something that is legal?
Thanks,
Jeremy
[Reply]
admin Reply:
October 1st, 2010 at 5:16 am
Hi Jeremy, I'm no lawyer, but I certainly see and write enough about legal issues. My guess is that something sounds a bit fishy here–particularlyl if this is a "staff" position–ie, you're not talking about an independent contractor situation. If you're required to be there (ie AT WORK) at 7:30 a.m., then in my book, that's when work starts. I'm not sure what state you're located in, but you can read more about labor law here and also about overtime pay (and not being allowed breaks, etc) here. If you're already working there, and again, it's a staff position (if they're taking the taxes and social security out of your paycheck, chances are it's a staff position) and you are coming in a half-hour earlier each day to work and only allowed to clock in at 8:00 am, then you may want to look into legal help–and you can find legal help here–just fill out the form and submit–it's a free service to readers and a lawyer specializing in employment litigation will review your details.
[Reply]
admin Reply:
October 1st, 2010 at 5:16 am
Hi Jeremy, I'm no lawyer, but I certainly see and write enough about legal issues. My guess is that something sounds a bit fishy here–particularlyl if this is a "staff" position–ie, you're not talking about an independent contractor situation. If you're required to be there (ie AT WORK) at 7:30 a.m., then in my book, that's when work starts. I'm not sure what state you're located in, but you can read more about labor law here and also about overtime pay (and not being allowed breaks, etc) here. If you're already working there, and again, it's a staff position (if they're taking the taxes and social security out of your paycheck, chances are it's a staff position) and you are coming in a half-hour earlier each day to work and only allowed to clock in at 8:00 am, then you may want to look into legal help–and you can find legal help here–just fill out the form and submit–it's a free service to readers and a lawyer specializing in employment litigation will review your details.
[Reply]