If successful, Federal law allows for this to be paid by the employer as part of the employees damages. (This is not first for any special reason other than it starts with an “A.”)
Employees covered by the Fair Labor Standards Act (FLSA), meaning due overtime and minimum wage. While there are a number of “exemptions,” the Act covers employers engaged in “interstate commerce” or in the production of goods for interstate commerce, or in any closely-related process or occupation directly essential to such production. “Interstate commerce” covers many, many businesses.
For a position to be “exempt” from the FLSA, the position must be listed and the employee must actually perform the particular duty. The title of the job really does not matter as much as the actual job duties.
Some employees are exempt from the overtime pay provisions or both the minimum wage and overtime pay provisions. Exemptions are generally narrowly defined under the FLSA. See Exemptions for more detail.
Establishes minimum wage, overtime pay, record keeping, and child labor standards affecting full-time and part-time workers in the private sector and in Federal, State, and local governments.
Covered employees must be paid for all hours worked in a work week. In general, “hours worked” includes all time an employee must be on duty, or on the employer’s premises or at any other prescribed place of work. Also included is any additional time the employee is allowed or permitted work.
Under the FLSA, a person who is an independent contractor is not entitled to overtime pay from the person who hired them. First determine if you are an “independent contractor,” then you can decide if you are owed overtime. Some criteria for being labeled an independent contractor include:
- The amount of control your employer has over you;
- If there is an opportunity for profit that is not controlled by your employer;
- The skill and effort required in the job; and,
- The permanency of the employment relationship.
Overtime is calculated at one and one-half times an employee’s regular rate of pay. Divide total pay, not just base pay, by the total number of hours worked. The total pay can include productivity bonuses and incentives for odd shift work.
It is against the law to fire or discriminate against an employee for filing a complaint or for participating in a legal proceeding for violation of overtime pay or wage and hour requirements. If your employer has done this, they can be held responsible both civilly and criminally for their actions.
The right to sue for overtime pay expires with time. If an employee files suit for back pay, all that can be recovered is pay up to two years prior. If the employee can prove the underpayment by the employer was willful or reckless, back pay can be recovered up to three years prior.
A workweek is a period of 168 hours during 7 consecutive 24-hour periods. It may begin on any day of the week and at any hour of the day established by the employer. Generally, for purposes of minimum wage and overtime payment each workweek stands alone; there can be no averaging of 2 or more workweeks. Employee coverage, compliance with wage payment requirements, and the application of most exemptions are determined on a workweek basis.