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.
November 19th, 2009 at 6:28 pm
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?
November 19th, 2009 at 8:10 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