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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Employees 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.

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.

Section 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.

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.

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.

To 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."

These 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 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 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.
Last updated on Oct-4-16