Uncovering the Confusion of Unpaid Overtime

October 17, 2022 | Attorney, Matthew Dolman
Uncovering the Confusion of Unpaid Overtime

How Do I Know If I Am Owed Overtime Pay?

It's payday and you've worked a total of 45 hours that week. You look at your pay stub and realize you weren't paid overtime pay for those last five (5) hours. Isn't your employer required to pay you time and a half compensation for those 5 hours? It's time we uncover the confusion of unpaid overtime. According to federal law, it depends on three things:
  • how much you make,
  • what you do day-to-day at your job,
  • and what your job position's skills typically are.

How does salary factor into overtime pay?

The Fair Labor Standards Act of 1938 (FLSA) dictates the standards by which employers are held when it comes to unpaid overtime compensation. Those standards state that any worker who is eligible, and who works more than forty (40) hours in a week, is entitled to compensation at a rate of one and a half times their usual hourly rate for any hours over 40 per week. One of the requirements that makes someone eligible for overtime pay, besides working over 40 hours a week, is the amount of their salary. This amount is a cap, meaning that if you make over a certain amount per year, you may not be eligible for overtime. Recent law changes from the Department of Labor increased the salary threshold for eligibility regarding overtime to $47,476 per year. If you make less than this amount, then you pass the first step to determining whether or not you're eligible for overtime pay.

How does day-to-day duties affect overtime eligibility?

Before an employee can deem themselves eligible for unpaid overtime compensation under the law, they first have to pass what is known as the FLSA Duties Test or the “administrative exception”. This standard allows an employer to not pay overtime compensation to an employee if they meet the following three criteria:
  1. They make at least $455 per week.
  2. The employee's primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers.
  3. The employee's primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
This exception means that managers, CEOS, or other high-ranking executives who perform managerial functions are ineligible for overtime even if their salary falls below the $47,476 figure.

How do skills in my job position factor into overtime pay?

Professions such as doctors, lawyers, engineers, or other skilled occupations that either has licenses or advanced degrees as prerequisites are usually ineligible for overtime pay. However, retail employees commissioned salespeople, and delivery drivers are among just some of the occupations that require payment of overtime. Courts apply the FLSA on a case by case basis for each Plaintiff to determine whether the skills and duties of that job make the Plaintiff eligible for unpaid overtime compensation.

How much will you receive if you win your overtime case?

If you are successful in winning a case for unpaid overtime compensation, you would receive compensatory damages equal to the amount of overtime you should have received, plus liquidated damages (double the amount) if it's shown your employer should have known about your overtime status. In addition, if you prevail, you are also entitled to reasonable attorneys' fees and costs.

What if I didn't ask my employer for overtime ahead of time?

It doesn't matter. Your employer is responsible for keeping track of and controlling your hours; not you. It is not your job to ask your employer for overtime pay or to give them forewarning that you will be exceeding 40 hours in the upcoming week. They create the schedule, they know the scope of upcoming projects, and they should know when and how much their employers are working. Employers are required to pay for overtime if overtime is worked and the employee is eligible. No matter what.

How does a two-week or bi-weekly pay cycle affect overtime?

Overtime is calculated based on a single work “week”; meaning seven consecutive days. Your pay cycle does not affect how long a week is or how hours are calculated in a week. So if you get paid bi-weekly, that means you work for two weeks then get paid for those two weeks. Your employer cannot average your weekly hours across those two weeks. For example, if you work 35 hours during week-one and 45 hours during week-two, your employer cannot average those two weeks and deny you over time. You are entitled to five hours of overtime pay for week-two. I have seen employers do something that is very sketchy with bi-weekly workers but that technically fits within the law. If you work two weeks in a row, your employer can technically have you work the last 4 days of the first week at 10 hours a day, and the first 3 days of the second week at 10 hours a day; meaning, you technically worked 70 hours in 7 days. But if this time is broken up over two different schedules, this technically counts as work for two different pay weeks.

What should I do if I'm not being paid overtime?

1. Ensure you are eligible for overtime pay

First, confirm that your job position is eligible for overtime pay and doesn't qualify for an FLSA designated exemption. Review the exemptions earlier in this article regarding job duties, salary level, and salary basis. If your position is not exempt, then your employer should be paying you overtime. It's time to prove it.

2. Document your unpaid overtime

Once you know that you should be receiving overtime pay but haven't been, calculate the number of hours of overtime that you worked within the last few years for which you were not compensated. Go back and collect as much documentation as possible. This is very important so that you can prove you worked overtime and were not paid for it. To document unpaid overtime, collect as many of your pay statements and time-sheets that you can find. This will prove when and how much you worked for specific dates and times. Your employment attorney will put this information into effective use.

3. Confront your HR department or boss

It is possible that your HR department or boss is unaware of the situation and it is simply a mistake. Confront them with the discrepancy in a friendly way, just in case you calculated something wrong or were unclear about some of the rules. It is possible that they made a mistake and will fix it, but it's more likely that they knew what they were doing and will continue to dodge paying you. Contact an employment law attorney immediately.

4. Hire an experienced employment law attorney

Once you are quite sure you are owed unpaid overtime, begin research to find a qualified employment law attorney to file an unpaid overtime claim on your behalf. Keep in mind that Florida has a two-year statute of limitations for back-pay claims, so you can only recoup owed overtime up to two years ago.

What are my options if I think I'm owed overtime pay?

If you think your employer has violated the Fair Labor Standards Act, you will need to file a lawsuit in federal court in order to protect your rights. The FLSA only allows you to collect up to two years of past compensation from the date you file your lawsuit. The Dolman Law Group Accident Injury Lawyers, PA has a team of experienced employment law attorneys in federal court who can provide you with a free consultation to determine whether or not you may qualify for unpaid overtime compensation. The Dolman Law Group Accident Injury Lawyers, PA won't get paid unless we recover compensation for you! The above is a guest article provided by Trescot Gear from Gear Law LLC, who is a co-counsel of Dolman Law Group Accident Injury Lawyers, PA.

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Matthew Dolman

Personal Injury Lawyer

This article was written and reviewed by Matthew Dolman. Matt has been a practicing civil trial, personal injury, products liability, and mass tort lawyer since 2004. He has successfully fought for more than 11,000 injured clients and acted as lead counsel in more than 1,000 lawsuits. Always on the cutting edge of personal injury law, Matt is actively engaged in complex legal matters, including Suboxone, AFFF, and Ozempic lawsuits.  Matt is a lifetime member of the Million Dollar Advocates Forum and Multi-Million Dollar Advocates Forum for resolving individual cases in excess of $1 million and $2 million, respectively. He has also been selected by his colleagues as a Florida Superlawyer and as a member of Florida’s Legal Elite on multiple occasions. Further, Matt has been quoted in the media numerous times and is a sought-after speaker on a variety of legal issues and topics.

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