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Should I Be Getting Paid Overtime? Wage and Hour Claims

Normally, "wage and hour" claims exist when an individual is not getting paid overtime. The Fair Labor Standards Act mandates employers pay 1.5 times an individual's pay if the individual works more than 40 hours in one week. Unfortunately, some employers play games to avoid paying "time and a half" for overtime work. If the worker is an independent contractor, and not an employee, the employer does not need to pay "time and a half," pursuant to the FLSA.

Some employers misclassify individuals as "independent contractors" when the individuals are, despite this designation from the employer, "employees." Simply because you are referred to as an "independent contractor," does not make this the case. Even if you have signed a contract stating that you are an "independent contractor," this does not necessarily make it so. If you work more than 40 hours per week, and have been told that you do not get paid "time and a half" because you are an "independent contractor," it will likely be worth your time to have an attorney look at the situation to determine whether you have been misclassified.

Along the same lines as the "employee/independent contractor" distinction, some employers misclassify individuals as "managers" to avoid paying overtime. The FLSA provides several different exemptions; one of the most common is the "Executive Exemption," which allows an employer to avoid paying overtime if an employee’s primary duty is that of management of the business, the individual regularly directs the work of two or more other employees, and the individual can hire and fire others (or at least their recommendations are given some weight). Some employers will provide the title of "manager," but not give the individual the requisite responsibilities. Sometimes this title is given by the employer to avoid paying overtime to the individual.

Another set of circumstances that may arise as an FLSA claim, or a "wage and hour" claim, is situations when an individual is "working," that is furthering the cause of his/her employer, but is not getting compensated. For example, if an individual regularly works through his/her meal breaks and does not get compensated for this time, this is likely a violation. If workers are not allowed to clock-in until after donning certain clothing or gear, this is likely a violation, as well.

Finally, if an individual works "on call," this time should be counted as time worked if the individual is required to remain at the work place or so close to it that he/she cannot use the time for his/her own purposes. The touchstone question on these cases is whether the worker is "waiting to be engaged" or "engaged to wait." This calls for a careful case-by-case analysis.

Any employee who prevails on a claim under the FLSA is entitled to his/her lost pay, liquidated damages (equal to the amount of lost wages) and his/her attorney's fees. To some, these issues sound nitpicky. If you are working, you should get paid, and if you are working more than 40 hours per week, you should be getting paid an overtime rate. If you have any questions about this, call Patrick Copley of Copley Roth & Davies, LLC. This is a matter of fairness.