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Unpaid Overtime Pay

Employees who work more than 40 hours in a week are entitled to overtime pay, which is one-and-one-half times the regular rate of pay, if the employees are not exempt from pay for overtime. Overtime laws are contained in the United States Fair Labor Standards Act (FLSA), which sets out when overtime kicks in and how much employees must be paid for working overtime. Employers who violate overtime laws could face lawsuits alleging they violated laws on overtime.

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Overtime Labor Laws

Unpaid OvertimeEmployees who are not exempt from overtime (exemption is based on administrative or executive duties) are eligible for one-and-one-half times the regular rate of pay for hours worked above 40 in a week or eight in a day. Violations of overtime labor laws include failure to pay employees overtime when they work overtime hours, failure to include non-discretionary bonuses when calculating overtime pay and misclassifying employees as exempt from overtime when they are not.

Overtime Laws

The FLSA requires most employees in the US be paid at least the federal minimum wage for all hours worked and overtime pay at one-and-one-half times the regular rate of pay—including non-discretionary bonuses—for all hours worked over 40 in a workweek. Many states also have laws governing minimum wage and overtime hours.

Overtime FSLASection 13(a)(1) of the FLSA provides exemptions from overtime pay for employees who are executive, administrative, professional and/or outside sales employees. There are certain tests that must be met for employees to be exempt from overtime pay; simply using "administrative" in a job title does not automatically exempt the employee from overtime pay.

Overtime and Arbitration

A recent ruling by the Ninth Circuit agreed with the National Labor Relations Board (NLRB) that employment arbitration agreements preventing employees from joining together to bring legal claims violates the National Labor Relations Act (NLRA). Specifically, in a 2-1 ruling, the court agreed that mandatory arbitration violates employees' rights to engage in concerted activity, as upheld by NLRA sections 7 and 8.

The ruling does not mean that all employee arbitration agreements are unenforceable but does open the door to employees challenging some arbitration agreements. This means that in some situations where employees have signed an arbitration agreement, they may still be able to file a class action lawsuit if their rights have been violated.

Defining Exemptions from Overtime Pay

Section 13(a)(1) of the FLSA exempts executive, administrative, professional, and outside sales employees from the FLSA's overtime requirements--as long as they meet certain tests regarding job duties. If these tests are met, they are ineligible for overtime.

Overtime LawsuitTo qualify for an exemption from overtime pay requirements under these categories, the employee must generally pass a two-pronged test consisting of a salary basis test and a duties test.

A salary test is usually met if the employee is paid a fixed amount of money weekly, bi-weekly and/or monthly, and there is no deduction from this fixed rate based on the quantity or quality of the work.As of December 1, 2016, the salaried threshold for employees to be exempted from overtime pay will be $913 per week ($47,476 per year). Meanwhile the salary exemption threshold for highly compensated employees is increased to $134,004 annually. This threshold will be updated every three years, starting on January 1, 2020. Full-time salaried employees do not make $47,476 annually will be eligible for overtime pay (with a few exceptions). Although the change increases the threshold for salaried employees to be exempted from overtime pay, the formula for calculating overtime pay will not change.

A duties test is different for executive, administrative and professional employees. The duties test is met by the actual work being done as opposed to "job titles" or written "job descriptions."

To Be Exempt as an Executive Employee, a Person Must:
  1. customarily and regularly direct the work of two or more other full-time employees;
  2. have management as his/her "primary duty;"
  3. have the authority to hire and fire, or effectively to recommend such action or other changes in status;
  4. customarily and regularly exercise discretionary powers;
  5. spend no more than 20 percent of his/her hours in the workweek in activities not directly and closely related to the above duties, or 40 percent in a retail or service establishment.
  6. be paid "on a salary basis."
To Be Exempt as an Administrative Employee, a Person Must:
  1. have as his/her "primary duty;"
    1. office or non-manual work directly related to management policies or general business operations; or
    2. performing work in educational administration, which work is directly related to academic instruction or training
  2. customarily and regularly exercise discretion and independent judgment;
  3. regularly and directly assist a bona fide executive or administrative employees; or perform under only general supervision work that is specialized or technical and that requires special training, experience, or knowledge; or perform special assignments or tasks under only general supervision;
  4. spend no more than 20 percent of his/her hours in the workweek in activities not directly and closely related to the above duties, or 40 percent in a retail or service establishment; and
  5. be paid "on a salary basis."
To Be Exempt as a Professional Employee, a Person Must:
  1. have as his/her primary duty work which requires:
    1. advanced knowledge customarily requiring extensive education; or
    2. originality and creativity in a recognized artistic field; or
    3. teaching or otherwise imparting knowledge as a teacher in a school or in an academic or educational institution; or
    4. theoretical and practical application of highly specialized knowledge in computer systems analysis, programming, and software engineering in a computer/software occupation;
  2. consistently exercise discretion and judgment;
  3. perform work which is predominantly intellectual and varied, and which cannot be standardized in relation to a given period of time.
  4. spend no more than 20% of his/her hours in the week in activities not essential and necessarily incidental to the above duties; and
  5. be paid on "a salary basis."

Outside Sales Exemption

Overtime Professional AdministrativeThese employees engage in making sales or obtaining orders away from their employer's place of business. They don't devote more than 20 percent of the hours worked by non-exempt employees of the employer to work other than the making of such sales.



Wage and Hour Lawsuits

Wage and hour lawsuits involve violations of laws concerning minimum wage, meal periods and rest breaks, off-the-clock work, documentation of wages, compensation of work-related expenses and overtime pay.

Donning and Doffing Violations

Donning and doffing refers to the time spent putting on and taking off uniforms or required work safety gear to properly perform job duties. Often, work gear can take 10 minutes or more to put on and take off for each shift, plus time spent dressing and undressing for breaks, but employers frequently do not pay for that time. In some cases, employees should be paid for their time spent putting on and taking off required work clothing and safety gear and, if the employee is full time, the unpaid time could actually mean overtime is owed.

In addition to uniforms and safety gear, some employees at restaurants are required to come in 15 minutes early to learn about the day's specials, set tables and taste food so they can recommend it to customers. Although this time is required for work—and although it benefits the employer—in some companies such time is unpaid, meaning workers are giving up an extra 15 minutes per shift for the benefit of their employer. For employees who work full-time, that extra 15 minutes per shift is unpaid overtime, and over the course of a year, that unpaid overtime could add up to hundreds of dollars of unpaid work.

A lawsuit has reportedly been filed against Bloomin' Brands, Inc, owner of Outback Steakhouse, alleging violations of the Fair Labor Standards Act. the lawsuit alleges the company required employees to perform unpaid work prior to shifts, refused breaks and failed to pay for mandatory meetings and training sessions.

Bloomin' Brands has denied the allegations.

Unpaid Overtime Legal Help

If you or a loved one is owed unpaid overtime, you may qualify for damages or remedies that may be awarded in a possible class action lawsuit. Please click the link below to submit your complaint to a lawyer who will review your claim at no cost or obligation.
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OVERTIME LEGAL ARTICLES AND INTERVIEWS

Donning and Doffing Can Equate to Unpaid Wages
Donning and Doffing Can Equate to Unpaid Wages Sacramento, CA: An unpaid wages lawsuit that began a few years ago against Mexican restaurant chain Chipotle Mexican Grill (Chipotle) took on an added dimension back in September when a US Congresswoman urged the US Department of Labor (DOL) to investigate Chipotle for alleged wage theft. The lawsuit, together with overtures by US Representative Rosa DeLauro (D-Connecticut), could be significant for California-based employees of the chain with overtime pay concerns associated with off the clock work, or donning and doffing [READ MORE]

Court: Donning and Doffing Not Offset by Paid Break Time
Court: Donning and Doffing Not Offset by Paid Break Time Sacramento, CA: A recent ruling in Pennsylvania could have implications for California donning and doffing lawsuits although how far-reaching the implications are remains to be seen. The Pennsylvania donning and doffing lawsuit involved claims that employers should not be able to offset overtime by paying employees for break time. The Pennsylvania Third Circuit Court of Appeals agreed with the employees, but what the lawsuit means for California overtime lawsuits and similar claims in other states is not yet known [READ MORE]

California Overtime –Too Much or None at All
California Overtime –Too Much or None at All San Francisco, CA: In a perfect world—including the state of California—all non-exempt hourly employees would get overtime pay for hours worked beyond 40 hours in any given work week. But some Southern California garment contractors have been found guilty of overtime violations and a San Francisco janitor earned $162,000 in overtime pay last year [READ MORE]





READER COMMENTS

Posted by
Joe Wojcik
on
I am a salaried employee for a political PR company working between 50-60 hours per week for a campaign. I am compensated $2400 a month, $1950 after taxes. Am I entitled to overtime pay as per the FLSA?

Posted by
Trina Thompson
on
I was working for general dynamics and was told to report 15 kin early was not allowed to click in

Posted by
Steve
on
Work for a school district in Florida in the warehouse as a delivery driver/ warehouse worker 37.5 hours a week. Occasionally work a few(sometimes 15 min.) overtime. We are forced to clock out early if this happens. This summer we are being told our hours are increasing to 10 hours a day 4 days a week with the possibility of being forced to work the fifth day for comp time. What can be done about this?

Posted by
Mia h.
on
I worked at a dairy queen from 2012-2015 and i never got paid over time. He (the owner) only changed my rate of pay on my check what can i do and is it to late to do anything?

Posted by
CC
on
My husband started working for a logistics company May if 2015. He works from 1am-11:30am with 30 minutes for lunch. They don't use timeclocks. They use what's called a dolphin. He uses his dolphin to log in and out of work. He's not paid for the amount if hours he works. His check stubs don't register his time worked nor his year to date totals. Is this okay?

Posted by
Me
on
Taoglas Inc. , San Diego
Withholds commissions from sales force.
Degrades workers.
Slanders employees.
Owner a shitbag.

Posted by
dagosta
on
i have been with this company since sept 2015 i was never paid for the first three days I worked (training as well as a tent site they needed coverage on 12 hour shift this is a total of 28 hours plus i worked over 40 hours regular pay) so i have asked them to pay up the arrears and still have not been compensated i was told to file a report with the labor and industry board for uncompensated wages I do not want to tick anyone off or loose my job over this but i think 5 months is plenty of time for them to resolve the issue my brother works here too and he was owed near two weeks of pay over a grand they are finally paying him back a little at a time but not recording what the hours are for so he is having trouble isolating the time owed him to what they are paying not sure but is seems their records are somewhat shady

Posted by
Sierra
on
In the state of Florida, is it illegal for a manager or supervisor to take from an employees tips to pay for a dine and dash without notifying the server before hand. If the tip is the employees and the employee hasn't had a chance to go pick it up from the table is it legal for the employer to take it and pay for the bill with the amount of tip given. No where has it been stated in handbooks or have the employees where I work been told that we are required to pay out of our tips for a dine and dash, the restaurant has always paid for it. But last night my manager took my tip off the table after the people paid for the check that wasnt updated so, she took my tip and paid off the remainder I told my coworker and she said they can't legally do that. Ive done some research and so far I have come up with what she did was wage theft, and the tip money was my property and that an employer cannot legally take your tips to pay for anything for towards the restuarants profit. I just want to be absolutsly sure before I go to my general manager in the morning since this was my assistant manager that did this to me. If nothing will be done I need to know the steps to taken to report her to corporate so it won't happen again to me or someone else.

Posted by
Pedro Ruiz
on
I work for Forever21 Logistics warehouse in Lincoln Heights The problem in my Manual Labor is that We have a set 9hour 5day schedule but when it's coming close like about 5 minutes close for my shift to be over our supervisor &/or Senior Associate demand us to Stay 30-60 minutes extra because they want to ship out more merchandise my question is if it's legal for Superviors &/or Senior Associates to Give you a demanding Very Late Notice to stay Longer than what you are supposed to ?

Posted by
Myron LeBoeuf
on
I worked for a company that has me on salary broke down by an hourly rate. based on 40 hours a week working 14 and 7 schedule. Now I worked 93 hours 87.5 hrs and 93 hrs in tht month. that's 153.5 hours overtime in a month. I want to know can I take them to court.

Posted by
Kira jorgenson
on
I'm a non exempt employee hourly pay..every week I do not get 40 hours they send me home 32,35,sometimes 26 hours if I get close to 40 hours I am harassed by email about our policy and my boss tells me it won't be approved and he will also be written up and possible terminated.as well as myself ..I have read online the laws and still don't get it..I have also been told by supervisor's and HR that my company will be fined if I get paid overtime. What do you think besides they just don't want to pay.

Posted by
Wisconsin
on
Over the last two weeks I’ve accumulated roughly eight hours of OT and tomorrow is the last day of the pay period. I asked today if my OT was approved and they said no, so of course I told them I would see them on Wednesday. They’re claiming that because it wasn’t approved by management I HAVE to work tomorrow at standard pay. When I worked the extra hours I was working as production supervisor and I definitely approved my overtime (I removed myself from the position three days ago because of lack of pay.) Also in the past, they have shorted me and other employees overtime hours by using a confusing pay schedule.

Posted by
North Carolina
on
Employer had me working off the clock and adjusting my time so that they wouldn't pay overtime. This happened for three years. Over 2,000 hours I worked off the clock.

Posted by
Florida
on
Our pay dates are the 7th and 22nd so my boss is sneaky about overtime. First of all, my overtime rate is posted as 6.31 when it should be 7.15. Also, they don't follow the proper procedure for overtime pay. They don't honor more than 40 hours in a seven-day period as overtime I guess.

Posted by
New York
on
Brinks Security doesn't pay its drivers and messengers overtime, claiming some law under the DOT which was never presented. When I questioned this, I was told it is legitimate. I searched this DOT law and found that it pertains to truck drivers who go from state to state. This base only has two or three trucks that go out of state. The rest of the truck deliveries are local.

Posted by
Alabama
on
I was a store manager for a year and a half. I averaged working over 65 hours per week. During the week though, I only performed managerial duties about 10-15 hours. I worked just like an hourly employee. I couldn't take lunches or breaks because of the amount of work to be done.

Posted by
Florida
on
Salaried employees consistently work 55-60+ hours per week with no additional compensation or regular break times. If you work less than 6 days a week your pay is docked a full day.

Posted by
Washington
on
I was the General Manager of a golf course. I was forced to work many different employees more than 40 hours per week, while the corporate owners did not pay overtime for those hours. They just paid the employees base time for hours worked. Could I open a lawsuit/investigation against them or would the employees who worked the unpaid overtime have to?

Posted by
Oregon
on
A year of unpaid overtime, I have been waiting almost a month for compensation.

Posted by
Michigan
on
I was employed in an "under the table" job, and worked an average of 13 to 16 hours a day, without overtime. It was not intended to be under the table. The manager told me I would be filling out tax forms after a two week period. This period passed, and all I was told was "we will get to it". We never did. We never signed any agreements, but I am on their time sheets, that they keep on file. I was wondering if there was any way to claim my unpaid overtime, and if not, maybe I could be recommended a number that i could call to at least report this establishment so that they cannot wrong anyone else.

Posted by
Arizona
on
When I brought up overtime pay to my employer they refuse to pay and then they forced me to sign an agreement stating that I will work for a salary, which is equal to my hourly rate at 52 hours a week.

Posted by
California
on
The company writes that our cell phone must be available 6am to 6pm, yet we are often called up to 10pm or later in which we are told to check emails or send documents. I recieve no overtime or commission. I have suffered much anxiety, depression, and lack of sleep.

Posted by
Mississippi
on
Owner told me any time over would be comp time after receiving comp time twice owner said he was placing me on salary for the same amount I just wasn't getting paid for the hours.

Posted by
Missouri
on
I ( and just about every cook) work about 9-11 hrs a day and only get paid a flat 95$ a day no matter how many hours a week I work, and we do clock in and out, so I know when I work over 50 hrs a week. Every cook is getting screwed but it's the best resturant in the city so nobody wants to say anything.

Posted by
Pennsylvania
on
As a result of having to work these long hours and many times without notice, my relationship with my paramour became unsteady and we eventually seperated. My children became delinquent due to lack of supervision. I suffered tremendous stress from feelings of uncertainty; in other words, if I did not do the hours, I would be fired and I really needed the money.

Posted by
Kansas
on
I work 66 hours a week on average, and do not recieve any overtime. My employers say they are exempt from paying overtime because we are farm workers. My job does not match up with the legal definition of "farm worker" under the exemption. They are part of a nation wide nursery and basically receive, re-pot and ship plants. I fill dirt into containers and drive a forklift.

Posted by
Florida
on
The office all works about 9am to 8-9pm and on weekends and we clock in and out but no one is paid overtime... My paycheck was short for the second month in a row, which has made me late on bills and I get the run around from the supervisors. There is harassment also at work. My boss has touched me and made tons of references in a sexual nature which I ignore. I am just fed up it is affecting my well being at this point an no one else will say anything for fear of being fired.

Posted by
California
on
Store managers at Michael's are required to work a minimum 50-hour workweek, with the exception of the 5-6 week holiday season, when they are required to work 60 hours per week. An average day for a store manager includes unloading trucks, stocking shelves, merchandising, cleaning, & cashiering. All sales associates, cashier, and hourly department managers are authorized to complete these tasks. Store Managers are salaried (no overtime, usually no meal breaks).

Posted by
Virginia
on
worked 60 to 80 hrs wk w/ no increase in salary; missed numerous appointments for my (4) children. NUMEROUS ARGUEMENTS W/ SPOUSE for all the time I was putting in at the job & how little time I had for normal life with family (him & children going on events i could not attend b/c i had to be @ work (& still not being paid for it; Missed 2 gratuations; 2 deaths in the family (b/c) they weren't "immediate family members" Was not allowed to nurse my youngest properly due to no time to pump during normal scheduled hours not to mention 3 to 5 hours staying over every day. was scheduled 6 days a week--every week no matter how many hours i worked previous week; was not allowed to leave work until all work was completed however was not given proper coverage w/ other employees; was scheduled as a cashier but was required to do management work during these times. Was not given adaquate staff to perform job duties; was required to replace shifts if someone called out or didnt show up. (By the way this happened on a weekly bases; at least 2-4 times weekly) working for 18-20 hrs a day on some days due to call outs or people quitting; asked to be switched to hourly so i can be compensated for hours worked & time missed away from family; was told would talk to owners but got no response until i put in a request for my vacation (3 mos pass due) These are moments i will NEVER recover;

Posted by
Florida
on
I was a salary employee working up to 70 hours per week and/or overnights.
In June 2007 I was ordered to work 'light duty, under 40 hrs per week' by my physician in writing but was forced to work 45 hours regardless of my doctors orders in writing to the head office.
I was then forced to resign June 24, 2007 from Big Lots who in turn also refused to pay me vacation pay due me for that calender year.

Posted by
California
on
Overtime, supervisor pay owed to me and violations made by media news group dba and newspapers/oakland tribune. Instead of OT, we were given equal number of hours off during week. I was weekend supervisor for 1-1/2 yrs and was supposed to get $25 bonus for shift but this was never noted on my paysub. They said it was included in my commissions. Many times we worked 7-9days in row but when i asked, no-one knew about the 7th day rule. In the 7years (1999-2006) I worked for ang, not once was i able to look at my personnel file, even tho i asked 5+ times. I was given incident reports for returning late from dr appts and being out sick and making emergency appts. i\I also got an incident report because my flight from oregon was cancelled and i came back 2 days late. Because of that, I only received 3 raises (from 11.12-11.92) from 2000-2005. I left the company in aug 2006.

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