Lawsuit For Unpaid Overtime: Can I Sue My Employer?

Are you being paid for the work you do? While the Fair Labor Standards Act (FLSA) guarantees most US employees both a minimum wage and fair overtime pay, 2014 saw over 270,000 workers cheated out of more than $240 million in FLSA violations. Through deceptive employee misclassifications and jerry-rigged hour schemes, business owners across the nation try to save themselves cash - while taking hard-earned money from the pockets of workers. Employers who break provisions in the FLSA can be held accountable. In many cases, legal action is the only way for workers to regain what they’ve lost.  

Overtime Pay & Minimum Wage Basics

According to the US Department of Labor, the FLSA protects around 135 million workers, more than 42% of the current US population. Here's what covered employees are guaranteed under the Fair Labor Standards Act, and how to know if your job applies.

How Much Is Overtime Pay?

Under the FLSA, “overtime” is determined on a weekly basis, rather than a daily one. One workweek is equal to a period of 168 hours, or seven twenty-four hour periods. Most employees who work more than 40 hours in one workweek are entitled to overtime pay. Overtime pay is calculated as one-and-a-half times a worker’s normal wage. If you normally work for $10 an hour, you are entitled to $15 for every hour worked beyond 40 in one workweek. Overtime must be paid in wages, not goods or time off. These wages must be paid in light of the hours worked and calculated based on an hourly wage; a lump sum payment does not count as overtime pay, even if the amount is more than a worker would have made based on an accurate accounting of their overtime wage and hours worked. Employees cannot waive their right to overtime. No agreement between an employee and employer can eliminate the FLSA's overtime requirements. Employers are not allowed to require prior approval before "consenting" to overtime wages. The Act does not limit the amount of overtime hours that an employee over the age of 16 can be scheduled.

Minimum Wage

Since June 24, 2009, the Federal minimum wage has been set at $7.25 per hour. No matter where you live, you are guaranteed an hourly wage no lower than that. But 29 States have higher minimum wages than the Federal rate. To find your State’s minimum wage, click here.

Who Is Entitled To Overtime Pay & Federal Minimum Wage?

Most employees will be covered under the protections of the Fair Labor Standards Act. Some jobs are excluded explicitly by the Act, while others are excluded because workers falling into those categories are covered by a different labor law. Commercial truck drivers, covered under the Motor Carriers Act, and railroad employees, covered by the Railway Labor Act, are two examples. In the majority of cases, if a worker is covered by a specific labor law, their job will not be governed by the FLSA.

Exempt & Nonexempt Employees

But even workers who are covered by the Fair Labor Standards Act may not be entitled to overtime pay. Any worker governed by the FLSA is either “exempt” or “nonexempt”; exempt employees are not entitled to overtime pay. Whether or not you are exempt from the FLSA’s overtime pay provisions comes down to three criteria:

1. How much you make - you may be exempt if you make at least $23,600 every year
2. How you’re paid - you may be exempt if you get paid a salary, if there is a minimum amount of compensation you’re guaranteed per week, regardless of how much you work
3. What you do - you may be exempt if you perform the duties of an “executive” or "manager," “professional” or “administrator”

Most workers will have to meet all three criteria to be considered exempt.

Executives, Professionals & Administrators: Am I Exempt?

In all three of these categories, what you do is more important than what you’re called. For example, a cashier who has been promoted to “store manager,” but has no impact on personnel decisions and spends the vast majority of their time at the cash register, would not be considered an “executive.” Inaccurate employee classification is one of the most common overtime scams.

Special Circumstances: Exceptions To Minimum Wage

In some cases, employers may be legally permitted to offer their employees lower than the $7.25 per hour minimum wage.

Youth Minimum Wage

The FLSA provides specific regulations for “youth” employees, workers under the age of 20. Employers are allowed to pay these young employees a lower wage, $4.25 per hour, but only for a limited period. After 90 calendar (not work) days, employers must pay youth employees the Federal minimum wage or an applicable State wage. If an employee turns 20 at some point during the 90-day period, their wage must be increased immediately. Employers are prohibited from firing other employees in order to hire a younger employee and take advantage of the reduced minimum wage for youth workers.

Tipped Employees

Any employee who "customarily and regularly" receives over 30$ every month in tips is considered a "tipped employee" by the US Department of Labor's Wage & Hour Division. In most States, employers are allowed to take a "tip credit," essentially reducing the wage they pay tipped employees by the amount of tips an employee receives. The lowest wage a tipped employee is guaranteed under the FLSA is $2.13 per hour, but employees who aren't making $5.12 per hour in tips are entitled to a higher wage. At this minimum, an employee's wage ($2.13) and hourly tips ($5.12) add up to the Federal minimum wage of $7.25. In order for an employer's tip credit to be legal, they have to notify (either orally or in writing) an employee of:

• the amount of the employee's cash wage
• the amount claimed by the employer as a tip credit
• that the tip credit can't exceed the tips actually received by the employee
• that tips are an employee's property, and must be held by the employee unless a valid form of tip pooling is being used

Contact An Attorney Today

As we've seen, the Fair Labor Standards Act provides rigorous standards for business owners. In an ideal world these regulations would ensure that millions of workers are paid fairly for their dedication and labor. But reality often looks very different. Employers attempt numerous strategies to circumvent the Act's provisions, effectively stealing hard-earned wages from their own employees. In fact, the Department of Labor has witnessed a 20% increase in the number of businesses violating FLSA regulations over the last five years. It's quite possible that your own employer may owe you unpaid wages. The experienced attorneys at Monheit Law, and Banville Law have joined forces with Timothy Becker, Esq., of Johnson // Becker, to investigate unpaid wage claims via an alliance called WageAdvocates. At WageAdvocates, we believe that every worker deserves experienced, aggressive counsel, no matter their personal circumstances. That's why our lawyers always work on a contingency-fee basis: you owe us nothing until we secure compensation in your case. Learning more about your legal options comes at no cost and no obligation. If you believe that your employer owes you unpaid overtime or other wages, contact our legal team for a free consultation today.