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September 3, 2013
If you work more than 40 hours in a work week, in most cases the Fair Labor Standards Act (FLSA) requires your employer to pay an overtime rate of 1.5 times your regular pay rate. Employers who fail to do this may have to pay fines to the government as well as compensate you for the missed overtime. Many employers try to find creative ways to work around this law, but in many cases these shortcuts are still in violation of the FLSA. Here are the top five mistakes employers make when violating overtime laws. If you find your employer is doing one or more of these, you may be entitled to unpaid compensation. Wrongly classifying an employee as “exempt” from overtime.1. Wrongly Classifying an Employee as “Exempt” from Overtime
The FLSA classifies “executive, administrative and professional” employees as being exempt from overtime requirements; however, it also gives specific criteria for what constitutes an executive, administrative or professional employee. Some employers skirt these requirements by labeling the position to sound like an exempt level position (e.g., “shift supervisor”, “assistant manager”), or paying the position a fixed salary. If you’re working more than 40 hours per week under these conditions, don’t assume you aren’t entitled to overtime just because you’re paid a fixed salary or have a fancy, managerial-sounding title.2. Denying “Unapproved” Overtime
Some employers think they are excusing themselves by requiring all overtime to be approved in advance, and refusing to pay overtime otherwise. The FLSA makes no such provisions. If the job you’re doing requires you to work overtime to complete it, and if the boss reasonably knows this, you’re entitled to the pay, regardless of whether it was “approved” in advance. Refusing to pay the overtime is a violation of overtime laws.3. Forcing “Off-The-Clock” Work
It’s a common practice among employers to pressure their employees to finish certain tasks “off the clock” at the end of the day, essentially blaming the employee for not getting the work done within the allotted time frame. This is actually a shady practice because it’s impossible to prove how much time is really required to accomplish a certain task. If your employer makes you clock out at a certain time, you should not be required to keep working. If you have succumbed to such pressure and worked over 40 hours a week as a result, you may be entitled to overtime pay.4. Wrongly Classifying an Employee as an “Independent Contractor”
Another common way employers avoid paying overtime is to label certain workers as “independent contractors” — that is, self-employed individuals. Technically, independent contractors are not employees, and therefore aren’t entitled to overtime. However, depending on certain factors such as what you do for the company, how critical your work is to the company, or what rights the company has to your work, you might actually be an employee in the eyes of the law, rather than a contractor. Again, don’t be fooled by the label affixed to your job; if you’re doing the job of an employee for more than 40 hours a week, you should get paid overtime for it. Not counting all work hours.5. Not Counting all Work Hours
There are certain jobs that by nature require some off-hours work where you aren’t officially on the clock (for example, travel time, emailing people in the evenings, etc.). If you are expected to “bring your work home” with you on a regular basis as part of your job duties, then according to the law, those hours should count toward your work hours for the week, and you should be paid for them (unless you are truly one of the exempt employees as mentioned earlier). If those off-duty work hours make your total hours exceed 40 per week, you may be entitled to overtime pay.
The laws are clear about what constitutes an employee, and at what point that employee should receive overtime pay. Employers violate overtime laws more frequently than you think. If you believe you may have been denied overtime pay to which you are actually entitled, consult an attorney to learn more about your rights.