Have You Been Denied Overtime Pay?

The federal Fair Labor Standards Act (FLSA) and state wage and hour laws generally require employers to provide employees with overtime pay equal to one and one-half times their regular rate of pay (commonly referred to as “time-and-a-half”) for work in excess of 40 hours in a workweek. In order to avoid paying overtime, employers engage in a number of unlawful practices, including requiring employees to work “off the clock” and misclassifying overtime-eligible employees as “exempt” from the overtime laws.

The permissible exceptions to not paying overtime are narrow. The law permits employers to treat certain position as exempt from the overtime pay requirement. However, exemptions are to be narrowly interpreted and an employer’s characterization of an employee as exempt is not the final say on whether an employee is entitled to overtime pay. In this regard, the law is not concerned with job titles, civil service classifications, or other identifications. Ultimately, whether an employee is properly classified as exempt requires a careful review of the employee’s actual job functions and very specific legal principles.

Have you been wrongly characterized as an independent contractor? Another reason why an employee may not currently be receiving overtime is the employer’s characterization of the individual as an “independent contractor” instead of as an employee. In analyzing whether a particular worker is an independent contractor—who is not entitled to overtime pay—or an employee, courts will focus on the economic reality of the relationship. As such, an employer’s labeling of a worker as an independent contract, either through a contract, human resource policy or other labeling, is not determinative of whether an individual is instead an employee entitled to overtime compensation.

What remedy does the law provide to employees improperly denied overtime pay? Employees that are unlawfully denied overtime compensation may be entitled to recover unpaid overtime, an equal amount in liquidated damages, and attorney’s fees and costs. In addition, for employee’s enforcing their rights to overtime compensation either through an individual lawsuit or as part of a class action (known as a “collective action” under the FLSA), the law contains an anti-retaliation provision which prohibits employers from retaliating against workers who file a complaint or otherwise assist in the investigation or prosecution of overtime violations.

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