LAWSUITS NEWS & LEGAL INFORMATION

Unpaid Overtime Pay FAQ

How many hours in a week must I work before I qualify for overtime pay?

If you are covered by the Fair Labor Standards Act (FLSA), you must receive overtime pay after working in excess of 40 hours in one week. The work week is a period of seven consecutive 24-hour days that begins on the same day each week. It is not necessarily Sunday to Saturday. Your employer determines the regular work week and you must be notified of these specifications upon employment.

I worked over a long holiday weekend, including Labor Day. Am I owed overtime for working the weekend and a national holiday?

Not unless you signed a contract with your employer beforehand. The Fair Labor Standards Act (FLSA) does not require overtime pay for working nights or on Saturdays, Sundays, holidays, or regular days of rest, unless you have worked more than eight hours on those days.

What is the Fair Labor Standards Act (FLSA)?

The FLSA, which is administered by the Employment Standards Administration's Wage and Hour Division within the U.S. Department of Labor, sets the standards for minimum wage and overtime pay of one-and-one-half-times the regular rate of pay. It also determines child labor standards affecting full-time and part-time workers in the private sector and in Federal, State, and local governments.

What does “hours worked” mean?

The FLSA defines hours worked as: "all time an employee must be on duty, or on the employer’s premises or at any other prescribed place of work, from the beginning of the first principal activity of the work day to the end of the last principal work activity of the workday." Also included is any additional time the employee is allowed (i.e., suffered or permitted) to work.

What is the minimum wage or basic wage standard?

Effective July 24, 2009, non-exempt workers are entitled to a minimum wage of $7.25 per hour, and those employees, i.e., nonexempt workers, must be paid overtime pay at a rate of at least one and one-half times their regular rates of pay after 40 hours of work in a workweek.

I’m a bartender and get tips. Am I entitled to time-and-a-half overtime of $7.25 per hour?

If you are a tipped employee and regularly receive more than $30 a month in tips, your employer can consider tips as part of your wages and is required to pay you at least $2.13 an hour in direct wages. However, if your tips combined with direct wages do not equal the minimum hourly wage, your employer must pay you the difference. As well, you are entitled to keep all of your tips, unless you’ve agreed to participate in a tip pool or similar sharing agreement.

When is double time paid?

Double time is required after working 12 hours in one day.

Does the FLSA determine how many rest periods I entitled to take in a regular work day?

No. Some employment practices are regulated by state law. The FLSA does not set the following employment standards:

• meal or rest periods, holidays off, or vacations;
• pay raises or fringe benefits; or
• premium pay for weekend or holiday work;
• vacation, holiday, severance, or sick pay;
• a discharge notice, reason for discharge, or immediate payment of final wages to terminated employees.

The government website has more information on different state laws here.

Sometimes I work six days a week. My employer pays overtime, but can they legally ask me to work more than five days a week, or more than 40 hours per week?

According to the FLSA, your employer has the right to ask you to work more than a 40-hour week, provided that you are compensated for overtime pay. If you are at least aged 16, the FLSA does not limit the number of hours in a day or days in a week an employee may be required or scheduled to work, including overtime hours.

Is a housekeeper covered under the FLSA?

Domestic service workers, including housekeepers, chauffeurs, cooks, full-time babysitters and day workers, are covered if their cash wages from one employer in calendar year 2010 are at least $1,700 (the Social Security Administration adjusts this amount each year); or they work a total of more than 8 hours a week for one or more employers.

I am paid a salary. Am I entitled to overtime pay?

Yes, you are entitled to an additional one-half times the regular rate for each hour over 40 in a workweek. To determine your hourly rate, divide your salary by the number of hours for which the salary is intended to compensate. In other words, you are entitled to an additional one-half times this regular rate for each hour over 40, plus your salary. Note, however, that you only qualify for overtime as a salaried employee if you are considered "exempt" (i.e., exempt from overtime); only "non-exempt" workers qualify for overtime pay. (see below).

I’m paid by commissions only. Can I still get overtime pay?

You may be entitled to overtime pay if you earn commissions only, without a set salary. Your overtime rate would be determined by your “regular rate”—the total amount that you earn during a pay period divided by the total number of hours that you worked. For instance, if you made $3,000 over a two week pay period and worked 55 hours the first week and 50 hours the second week, your regular rate is $3,000 divided by 110 hours, or $27.27. Your overtime rate would be one-and-a-half times $27.27, or $40.90.

What does "exemption" or being "exempt" mean?

An "exemption" means that the overtime law does not apply to a particular classification of employees--those employees considered "exempt" from overtime pay--and there are a number of exemptions from the overtime law. To be exempt, your job description must meet certain criteria; many employees, such as computer programmers, are misclassified as exempt and therefore are owed overtime pay.

When I was hired, I signed a statement saying I am exempt. My supervisor told me that I don't get overtime. Is that right?

Not necessarily. It doesn't matter what you signed about being exempt or entitled to overtime. Your actual job duties will determine whether you are exempt. If your job duties and salary don't meet all the requirements for an exemption, you are entitled to overtime.

I work part time and am paid a monthly salary. Does that exclude me from overtime?

Unless you are exempt, you are required to be paid for all overtime worked. Even if you are paid on a salary basis, you can still be entitled to overtime, regardless of the amount of your salary. And even if your company labels you a "part time" employee, or an "independent contractor," you are likely entitled to overtime pay. The only people who are not entitled to overtime pay are those people that meet all of the requirements for one or more of the narrowly defined exemptions, even if you supervise other people. An experienced wage and hour attorney can evaluate your situation and determine whether you meet the criteria to be able to collect overtime pay.

I work in the computer industry. Am I entitled to overtime pay?

As above, exemption is dependent on your job duties and not your job title. Most employees in the computer industry are non-exempt because their job consists of maintenance, operation and/or repair of computers. As well, if you are paid hourly at less than $27.63 per hour, you are entitled to overtime pay. However, highly skilled computer professionals (e.g. who work without close supervision or supervise) are exempt.

I want to ask my employer for overtime, but my co-workers and I believe we will be fired if we do so.

Your employer should be aware that refusing overtime pay is a violation of the FLSA and could be prosecuted criminally and fined up to $10,000. A second conviction may result in imprisonment. It is a violation to fire or discriminate in any way against an employee for filing a complaint or for participating in a legal proceeding under the FLSA.

If you have been fired or retaliated against for bringing up the issue of overtime to your employer, an additional claim can be made against your employer to get your job back, get the pay you are owed both before and after the retaliation and seek other penalties. talk with an attorneyif you have in any way been retaliated against or feel threatened.

Is there a time limit to recover back pay?

Yes. You have a 2-year statute of limitations to apply for the recovery of back pay, but a 3-year statute applies in the case of willful violation, e.g., if the employer’s conduct was deliberate or reckless. If you wait 18 months to file suit, you can only recover the remaining 18 months of unpaid overtime. 

I believe that I am owed unpaid overtime. What steps should I take? 

First, you should contact an experienced wage and hour attorney right away, especially if you are no longer working for that employer (as in the statute of limitations, above).

You should also find out whether or not you are exempt from overtime. An attorney can assist you in determining how much you would be entitled to receive in overtime pay.

How much can I expect to receive if I have a valid overtime claim? 

You are entitled to the unpaid wages you are owed plus interest plus a “liquidated damage” amount.

Liquidated damage is equal to the amount of the wages you are owed. For instance, if you are owed $4,000 in unpaid wages and win your case, you are entitled to $4,000 plus an additional $4,000 as a penalty from your employer for a total of $8,000. And your employer is required to pay your legal fees and costs.

Can I file an overtime complaint against my current employer?

You can file an overtime complaint against your current employer, but you might want to talk to an attorney beforehand to determine whether or not you have a legitimate case. It is against the law for an employer to retaliate against you but if you don’t have a case, it might cause an uncomfortable work environment. The best thing is to have your attorney talk with the company's attorney first.

How much do I have to pay in legal fees to go ahead with an overtime claim?

Almost always, your attorney will work on a contingency basis, meaning that you don’t pay legal fees unless your case is successful and you are awarded overtime pay. (As above, your employer will also be required to pay your legal fees and costs.)