Simple Guide to Handling Overtime Violations

Overtime pay, once used as an economic stimulus program, is now considered an employee right. If an employee works more than a standard work week, they should be paid a premium, specifically time and a half. The problem is that many employers try to avoid paying the overtime premium and could violate worker’s rights while doing so. If you believe your employer is violating your overtime hours, talk with them first. Otherwise you may file a wage complaint or consider taking legal action by consulting an experienced overtime attorney. 

What is Overtime?

According to the federal Fair Labor Standards Act, overtime is considered any hours worked beyond 40 hours and must be paid 150% the hourly rate by covered employers to eligible employees. States have their own laws about overtime as well, making the individual covered on both a federal and state level. Some employees are exempt from overtime, however.

For example, employees that perform “white collar” duties are exempt if they earn at least $455 per week and require an advanced degree to do so. States have different categories of exempt and non-exempt employees, which means you may be entitled to overtime under federal, but not state law. States also have different daily overtime limits, as well. Employees should know both federal and state regulations regarding their overtime, so they are fully compensated.

Common Overtime Violations

Overtime violations committed by your employer are not simply by coincidence. Typically, one of three violations has occurred: misclassification of employees, not counting hours worked, or not calculating the correct hourly rate.

Employee Misclassification

There are several ways in which an employee may be misclassified:

  • Managers misclassified as exempt, even when employees under them are performing the same duties
  • Employees misclassified as exempt due to a white-collar description, when their job does not require discretion or independent judgement
  • When paying an employee based on the number of hours worked instead of a true salary
  • When reducing an employees pay based on hours, performance, productivity, or other factors that are not allowed
  • When paying an employee less than $455 per week 

Not Counting Hours Worked

Even as an exempt or non-exempt employee, the employer might still violate overtime by not counting the hours worked correctly.

  • If an employer requires you to work outside of scheduled hours and not clocked in
  • If an employer requires you to work through unpaid rest or meal breaks
  • When an employer requires or allows employees to complete extra work at home that is not compensated
  • When an employer does not count travel time or the time it takes to put on or take off protective gear

Incorrectly Calculating the Hourly Rate

The law clearly determines that overtime pay is 150% the employee’s standard hourly rate.

  • If the employer does not count all wages, commissions, and shift differentials in calculating the hourly rate
  • If the employer does not count all performance-based bonuses and prizes in the hourly rate

Filing a Wage and Hour Complaint

If you believe your employer has committed any of these violations, you may file a wage and hour complaint at the Wage and Hour Division of the Department of Labor. You may file a claim either by mail or in person with information regarding you and your employer.

  • Your name, address, and telephone number
  • Your employer’s name, address, telephone number, and type of business
  • Your job title and description of responsibilities
  • Payment information including how much, the method of payment, and how often
  • A description of the violations as you have seen them
  • Date of violations

After your claim has been filed, a WHD employee will review and conduct the investigation to help you recover lost wages. Your name will be kept anonymous to your employer. An employer is not legally allowed to fire or discriminate against an employee who seeks help under the FSLA.