Working Overtime: Are You Entitled?

In this fast paced society we live in, every day is a race to get the most accomplished in the shortest period of time. However, sometimes the demand of a career can either require or leave an employee wanting to work overtime. But overtime is not necessarily an entitlement given to all employees.

Here’s a section of my book “The Employee Rights Handbook” that deals with the complexities of overtime and how they may affect you. Get informed and know your rights!

Overtime Pay

The federal FLSA mandates that most employees receive one and one-half times their regular rate of pay for hours worked in excess of 40 per week. While this may sound straightforward, overtime law can actually be quite complex.

Employees in certain industries are not entitled to overtime pay regardless of the number of hours they work. The categories of employees who are generally not entitled to overtime pay include but are not limited to: certain salespersons; certain mechanics; certain transportation workers; certain computer systems analysts; computer programmers and similarly skilled employees; teachers; and many many more.

In addition to these specific categories of exempt employees, overtime is generally not available for workers who are paid on a salary basis and work in administrative, executive, or professional jobs. If you are an hourly employee, these three broad exemptions (administrative, executive and professional) do not apply.

Despite this guidance, it is not always easy to know whether an employee is entitled to overtime pay for work in excess of 40 hours per week. Thus, one must conduct a highly detailed analysis of the employee’s day-to-day level of discretion and authority to determine if he is exempt or not.

Know Your Rights!

Employers who fail to pay required overtime are liable for any unpaid overtime compensation and an equal amount as liquidated damages, plus attorney fees and costs. For willful violations, damages sometimes include earned overtime up to three years back, plus punitive damages. Since the purpose of the FLSA is to ensure that employees are paid their full wages, employers may not make any deals to settle wage-hour claims for less than the full amount (even when a release is signed by the employee to defeat the rights of the worker). While courts are usually pleased when prospective litigants compromise their differences, no such compromise is accepted under FLSA. If you are an hourly worker, you may be entitled to overtime pay under the following conditions:

  • If you arrive to work earlier than your starting time and do light work at the request of the employer
  • If you typically work through lunch breaks at the employer’s request
  • If you take work home with the knowledge and permission of the employer
  • If at home you are required to be “on call” and ready to report to work within an hour
  • If you work several hours of overtime on a Friday and the employer states that you can leave work several hours early the following week
  • If the job requires you to stay overnight for out-of-state assignments or travel extensively while on company business (but not for normal commuting travel to and from your home)

Additional rules concerning overtime:

1. Generally, employers cannot force workers to waive their entitlement to overtime.

2. If the company has no knowledge that an employee is working overtime and has established a rule or policy, conspicuously posted, that prohibits overtime work, an employee may not be entitled to overtime pay after making a claim.

3. The FLSA does not protect employees who deliberately over report their overtime hours. The employer may terminate an employee who falsifies overtime hours and may not be subject to claims of retaliation or unfair treatment.

4. Generally, employees cannot refuse to work overtime unless they have a valid reason (e.g., taking care of a sick child). If the refusal to work overtime is not for good cause and the employer suffers undue hardship, this may be grounds for a valid termination and denial of unemployment benefits, even for union workers protected by collective bargaining agreements. However, if you believe you were fired unjustifiably, speak to a lawyer immediately.

5. If you are requested to participate in a company-sponsored program after hours, such as a mercy session (e.g., a company-sponsored blood drive), and are an hourly worker, you may be entitled to overtime compensation.

Confer with counsel if you are unsure whether or not you are truly considered an exempt worker. The Wage and Hour Law is complex, and matters are often subject to detailed investigations, should you have any questions on Employment law regarding overtime, contact The Employee’s Lawyer Steven Mitchell Sack.

 

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