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Unpaid overtime and minimum wages

An Overview

The Federal Fair Labor Standards Act (the "FLSA") requires most employers to pay their employees at the rate of time and one-half (1½) times their regular hourly rate when those employees work more than forty (40) hours per week. This may include employees who work forced, mandatory overtime as well as employees who simply work "off the clock." If an employer knows or reasonably should know that covered employees are working more than forty (40) hours per week; those employees should probably be paid overtime. Many employers wrongly believe that paying their employees a weekly salary rather than on an hourly bases will, in and of itself, make that employee exempt (not-covered) by the FLSA. Even if a covered employee receives a salary, (unless that employee is actually performing certain types of specified job duties that would render them "exempt"), they are entitled to receive overtime.

The FLSA is a national law; therefore, it is applicable to employees in Florida and other states. Employers covered by the FLSA must pay at least the federal minimum wage ($5.85 / hour) as well as paying overtime.

The United States Department of Labor ("DOL") enforces the federal minimum wage and overtime law. The DOL is frequently unable to help wronged employees because they simply have too few investigators and too many complaints to investigate. Therefore, most employees will want to obtain a private attorney to help them obtain their unpaid wages.

Common ways employers violate the FLSA:

1. Working "Off-the-Clock": Some employers require their employees to do certain tasks before clocking in or require them to clock-out at the end of their shift but keep working until the job is finished.
2. Lunches and Breaks: Some employers do not pay their employees for short breaks. The law, however, usually requires employers to pay their employees for breaks that last only five (5) to twenty (20) minutes. Also, if an employee is required to clock out for lunch but remain working at her desk or is not completely free from her duties during lunch, the employer must pay the employee for that time.
3. "Salaried" Employees: Many employers will try to avoid paying overtime by simply paying a salary to employees who are not exempt from the requirement that they be paid overtime. Generally, executive, administrative and professional employees are exempt from the overtime requirements. It is the actual job duties the employee performs, not the title, that determine whether an employee must be paid overtime. For example, an employer may call an employee an "assistant manager" and pay that employee a salary, but if the employee does not really supervise anyone, he nor she probably should be paid on an hourly basis and entitled to overtime pay.
4. Improper Pooling of Tips for Wait Staff: In certain situations, employers who employ wait staff are permitted to pay their wait staff less than the minimum wage for each hour worked where the employee receives tips. In other words, the employer gets a "tip credit." Sometimes, an employer will not be permitted to claim a tip credit if it requires its employees to share their tips with employees who do not customarily receive tips, such as the restaurant manager or the chef.
5. Unpaid Final Paycheck: Some employers terminate their workers and then fail to give them their final paycheck. Usually, employers are required to pay employees their wages, on the regular and customary payday. Absent extraordinary circumstances, employees must receive their final paycheck of at least their minimum wages. Because the federal minimum wage is $5.85/hour (it is higher in some states), an employee who receives nothing for their last paycheck, is actually receiving less than the minimum wage for their hours worked. Rolnick
6. Take Home Work: Some employers permit an employee to take home work, but do not include, the time the employee spends working at home in calculating the employee's wages.
7. Combining Workweeks: Some employers try to avoid paying overtime by averaging an employee's hours over 2 or more workweeks when determining if the employee worked overtime. For example, if you work 35 hours one week and 45 hours the next week, you are paid for 80 hours and are not paid any overtime for the week in which you worked 45 hours. This is incorrect. You are entitled to overtime for each hour you work over 40 in a given work week.
8. Pre-approval Requirement: Some employers refuse to pay for overtime work if the employee did not get advanced permission to work overtime.
9. Meetings and Training: Some employers require employees to attend work-related meetings and/or training sessions, but do not pay for those hours.
10. On-Call Work: Some employers require employees to be "on call" when they are not scheduled to work and to report to work in a short time period.

If you believe your situation falls into any of these categories contact the law offices of Rolnick and Netburn to discuss your unpaid wage claim. Employees seeking and ensure compliance are also waged to schedule a consultation to discuss these matters.