Understanding Overtime Pay

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What Are Some of the Most Common Overtime Law Violations?

In a job, you expect to complete your work and get compensated for your effort. However, if you do your part and your employer doesn’t, you may be able to pursue litigation to get back what you’re entitled to. The truth is that there are a number of ways an employer can cheat you of money.

 In fact, it’s been estimated that nearly 70% of employers are not in compliance with labor laws regarding overtime. The FLSA has clearly stated when employers must pay their employees overtime. We wanted to take a second and talk about a few of the most common so you can watch out against it and contact an overtime pay lawyer if you notice something is wrong.

 When Should You Contact an Overtime Pay Lawyer?

 Day Rate Pay: One way employers try to bypass labor laws on overtime is by paying employees a day rate. While an employer can certainly establish a day rate pay system, he/she will still have to pay employees an overtime premium after they have worked more than eight hours. If he/she doesn’t, he/she is in violation of the law.

Straight Time Paid for Overtime: Another common mistake (whether accidentally or on purpose) employers make is paying their employees their hourly wage after they have worked more than forty hours. The law states that hourly employees must be paid time and a half for every hour worked after forty. If an employer doesn’t do this, an employee has the right to sue for that additional compensation they’re entitled to.

Misclassification of an Employee as an Independent Contractor: Finally, an employer might try to classify an employee as an independent contractor to save money and not have to pay overtime. There are clear rules out there about what an independent contractor is and what an independent contractor isn’t. If an individual working for a company doesn’t meet those requirements and is, instead, just an employee, an employer must honor this and pay him/her overtime pay.

If you find that you are the victim of one or more of these violations, we encourage you to contact an overtime pay lawyer who can fight for you and ensure justice is served.

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Overtime Rule to be Rewritten

The overtime rule put in place by the President Barack Obama administration will be rewritten by the administration for President Donald Trump. There have been various delays regarding the changes to the rules dating back to November of 2016, giving the current administration more time to rewrite the rules. The deadline for the overtime rules change had been extended from May 1 to June 30.

Under the previous administration, the rule was expanded to double the amount of money a worker must make before being deemed a managerial employee and exempting them from the law that requires them to make time and a half when working more than 40 hours per week. The number was raised to $47,000, but the administration ran out of time to get this new limit passed, leaving it in the hands of President Trump and his administration.

The proposed changes to the rule were rejected by a Texas court based on procedural grounds late in 2016 when business groups sued, saying the new amount was too high. The Obama administration appealed the ruling, but failed to resolve the problem prior to leaving the White House.

Overtime lawyers made a court filing on June 30 that stated the following:

"The department has decided not to advocate for the specific salary level ($913 per week) set in the final rule at this time and intends to undertake further rulemaking to determine what the salary level should be. Accordingly, the Department requests that this court addresses only the threshold legal question of the department's statutory authority to set a salary level."

The Justice Department has yet to say what the new level for the overtime rule should be when it comes to the salary. Business groups were pleased with the court filing by the overtime lawyers from late in the month of June, claiming that the impact on their workers would’ve been excessive had the rule changes from President Obama taken effect.

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4 Things You Should Consider Before Accepting a Job Offer

Receiving a job offer is exciting, and opens up a new set of opportunities in your life. It can be easy to accept out of excitement or relief about receiving an offer, but it’s important to make sure you’re as informed as possible before making such a major decision. Take into account:

The basics

At its core, you need to understand the position you’re accepting. The Muse’s Angela Smith suggests a list of essential questions like:

·         Do you have a solid understanding of the work you’ll be doing every day?

·         Have you agreed on a job title that accurately describes the work you’ll be doing, fits into the company’s existing structure, and meets your professional goals?

·         How will your success be measured? What are the specific goals and outcomes, and how will you be evaluated?

Smith also suggests considering your hours and schedule, as well as, of course, the start date.

The history

It’s important to understand what you’re signing up for. You should be sure to ask why your position is open, how long your predecessor worked in the position and how many people have held the position in the last five years. If it is a newly created position, this can present its own difficulties and challenges (as well as opportunities!).

The exact earnings

Salary is critical to a job offer, and it’s best to negotiate terms before you start the job instead of after. Further, you can’t just consider the baseline numerical offer. You must also take into account things like benefits, overtime rules, the cost of any changes to your commute and additional perks like gym memberships and tuition reimbursement.

The people

If you can, meet with all of the coworkers who will be on your team and whose decisions could affect your day-to-day work. Use LinkedIn if appropriate to connect with coworkers and look for what you and your prospective colleagues have in common. This is a good way to gauge the company culture and whether you’ll be happy there.

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What Now after the Overtime Rule Injunction?

The big news over the past few days in labor has been the ordered injunction of the new overtime pay rule, which was set to go into effect on December 1st. A federal judge ruled that the overtime law was an overextension of government powers and blocked the new FLSA rule. 

Employers and employees are probably wondering what happens next. Is the rule completely dead? Should employers roll back any changes they made to comply with the rule? Will the new administration have an impact on future litigation? 

Unfortunately, there are a lot of questions that legal experts really don’t know the answer to. Entrepreneur Magazine took a look at possible options down the road for the FLSA rule. 

First and foremost, the Department of Labor can appeal the injunction. However, the court can make it a permanent injunction, and it could take years for the courts to make a final decision. And then there is the problem of the new upcoming administration. It has indicated so far that it is against the rule, so it might not pursue the process or attempt to rewrite it. 

However, employers may still want to make those changes permanent if they have already done so. If they raised pay to comply with the rule, it would not be a good idea to scale back pay. Nobody likes to take a pay cut, and it could really destroy morale.In addition to that, if the rule does become finalized and enforced, it could be retrofitted, which could be very costly to the employers if they have not complied.  

Employees can review their own classification and hours to determine if they are being paid fairly under the law. If they have any questions, they can always speak to an overtime lawyer. Also, they can always organize and become advocates for a rule that clearly would have helped them. 

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What Benefits Will Be Seen from the Overtime Rules Change?

Overtime laws in this country are about to change. In December, the threshold for exempt salaried workers will be $47476. This is nearly double what it is currently. When we talk about the threshold for salaried workers, we mean who is exempt from overtime pay if they work beyond forty hours a week. If you make less than $47476, your employer will no longer be able to classify as exempt, meaning you will earn time and a half if you work beyond forty hours a week.

Now obviously, there will be some changes that employers and employees should be aware of. First and foremost, labor costs for employers will obviously go up. Beforehand, salaried employees making more than the previous threshold could work as many hours as they needed to and it wouldn't cost the employer a dime after he or she hit the forty mark. Now, it will for a much larger portion of the workforce.  

So how will employers respond to the changes? They will need to hire more people obviously to fulfill the necessary work. This means a better quality of life for many people who were working 60-70 hours a week. In addition to that, many employers will have to pay them more by the hour to ensure that their salary remains the same, it will be a win-win for employees.

However, it's important to know your rights under the new overtime rules change. There will be some employers out there who may not inform you of your rights or proceed with the rule change, and this is unacceptable. if you find that this happens to you after December 1, contact an overtime lawyer and receive the compensation you deserve.

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Understanding Reporting Time Pay in California

Unfortunately for employees, managers can generally modify or change work schedules at any time without prior notice. This is all based upon the needs of the business – the federal Fair Labor Standards Act (FLSA) does not regulate the number of hours that employees can be required to work and employers are allowed to increase or reduce hours to avoid paying overtime. While this can be inconvenient for you as an employee, there are laws that are related to the reduction of scheduled work hours that protect you.

According to California labor law, reporting time pay is required of employers so that nonexempt workers are guaranteed at least partial compensation for employees who arrive to work expecting to work a certain amount of hours but are cut short – whether because of inadequate scheduling or lack of proper notice by the employer. California state wage laws state that each day an employee is scheduled to work but is not offered work or is asked to leave with less than half of his or her usual or scheduled day's work, the employee must be paid for half of the usual or scheduled day's work at his or her regular rate of pay. However, they may not be paid for less than two hours or more than four hours at his or her regular rate of pay.

For example, if you are scheduled to work an 8 hour shift and your boss realizes that he or she has scheduled too many employees to work, your employer is required to pay four hours of pay at your regular rate (one for the hour you worked and three as reporting time pay). However, when determining overtime pay according to California overtime labor laws, only the one hour which was actually worked counts and the other three are not counted as hours worked in order to correctly determine overtime. In simpler terms, reporting time pay is not counted toward hours worked in computing overtime. Additionally, if an employee reports to work a second time in one workday and is given less than two hours of work, they must be paid for two hours at regular rate of pay.

If you report to work expecting to work a certain number of hours but do not get to work your full schedule due to inadequate scheduling or lack of proper notice, and you did not receive the proper pay, you may be entitled to compensation. If you are questioning whether or not you are receiving the correct reporting time pay, it's important to find a lawyer experienced in the labor laws of your state in order to receive the correct compensation.

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Are You Being Paid Enough for Your Overtime?

California overtime laws are complex and include many additions and extras beyond federal standards. These laws exist to protect workers and ensure fair pay. Unfortunately, many workers don't know the ins and outs of labor laws and may not realize they're being underpaid for their overtime. To understand whether or not you're being paid enough, let's look at the four main kinds of overtime and how each one works. You deserve extra pay if you are working:

1. Too many hours in one day: The federal Fair Labor Standards Act established the standard work week as being 40 hours of work, which is generally divided into five days of eight hours each. In California, employers can ask you to work more than eight hours in a day, but doing so is overtime, even if you still clock in only 40 hours for the week total. For example, if you work ten hours on Monday, but only six hours on Tuesday to make up for it, you still have two hours of overtime on Monday. This time is paid at time-and-a-half rates (150% of your normal rate).

2. Too many hours in one week: The most basic form of overtime involves working more than 40 hours per week. This could consist of some long days like the example above, or it could mean working six days instead of five. No matter how many days it involves, all time above 40 hours per week is paid at at least time and a half. In some cases, it will be paid at an even higher rate, as we'll see below.

3. Too many days per week: In California, it is expected that employees will have at least some days completely off of work. An employer can ask you to work six days a week (with one day off) at no extra penalty, but if they ask you to work all seven days of a given week, you get overtime. This is true even if you don't work full days every day, and even if your total hours are less than the 40-hour standard. For example, if you work Monday through Sunday for just four hours a day, that's a total of only 28 hours of work. Nonetheless, the seventh day is paid out at time and a half, because you are getting no days off.

4. Excessive overtime: In some cases, your overtime pay gets even bigger. This is true mainly in two circumstances: (1) if any day of work goes over twelve hours total, or (2) if your seventh work day in a single week goes over 8 hours. In either of these cases, the excess time is paid not at time and a half,  but at double time—twice your normal rate. Have you been asked to do any of these at your job? Were you paid the right overtime?

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Is Your Employer Breaking Overtime Rules?

In the current economy, "time and a half" can go a long way.  However, sometimes things can be a bit fuzzy when it comes to overtime laws and what exactly qualifies as overtime or overtime pay. As a result, it's important for both workers and employers to understand how overtime works and what the requirements for overtime are so that everyone is on the same page.

Overtime work, by law, is work in excess of 40 hours in a single week (or in states such as California over 8 hours per day). This type of work requires one and a half times the regular hourly wage of the person that is working the overtime hours. This means that the higher your hourly wage, the better your overtime rate of pay will be.

Legally speaking, 40+ hour weeks are the only instances where it is absolutely required that a worker be paid overtime. It is not required for an employer to provide extra or premium pay to employees for weekends or for holidays, regardless of the religion or secular occasion. This is according to the Fair Labor Standards Act, which only recognizes the time and a half minimum and the amount of work as the two parts of the overtime work formula. Most states, including New Jersey and New York state follow this overtime law formula.

Some companies have strict rules about overtime and going over hours because it can be costly to pay out overtime, and it can be a write-up worthy offense if you allow your hours to slide into overtime, either intentionally or accidentally. However, if you do work more than 40 hours in a week but aren't being paid overtime, your employer is breaking the law. If you find yourself in this situation, be sure to contact an attorney who can help you get the pay you deserve.

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Reclassified Employees Entitled to Back Overtime Pay

The federal government has strict regulations about laws on overtime that affect how much employees are entitled to earn based on their status. People in exempt job positions are not entitled to overtime pay, but those in nonexempt positions qualify. While companies have a responsibility to classify jobs correctly, sometimes they make mistakes with the classification system that penalizes employees in nonexempt positions.

Correct Classification Most of the employees who are paid an hourly wage are classified as nonexempt employees and must receive overtime pay. Exempt employees receive a salary and don't need to keep track of their hours. For example, many people in the IT industry who provide technical services to clients have to keep track of their hours. Court decisions in the past have found that regardless of how the employer rewards you as an employee, you may be entitled to receive overtime pay.  Sometimes the line between exempt and nonexempt employees isn't clear. If your employer expects you do any of the following, you may be entitled to overtime pay:

Work in the field

Wear uniforms without compensating you for the time it takes to change once you're on the job

Subtract hours from your work day for travel time, or

Repair equipment off the clock

Past Overtime Compensation

You may qualify for a nonexempt status, opening up the possibility of receiving not only future overtime pay, but also compensation for hours worked in the past. Your best recourse if in doubt is to keep documented records of your work activity, including the hours put in on the job and the duties you perform. The court may be able to reward you up to two to three years of overtime pay if your employee status has been misclassified. Some states, like New York or California, honor claims going back even further.  While labor laws can be complex, it's always a good idea to know the difference between your exempt or nonexempt status. If you believe that your exempt status is a mistake, do some research or contact a lawyer. The overtime pay you may be entitled to may very well be worth the effort. 

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Exempt Vs. Non-Exempt Employee Status and Overtime Pay

There are specific laws in place in every state, that are aimed at ensuring workers receive fair treatment and working conditions, as well as being properly compensated for their work. The California overtime law is very clear as to who is and who is not eligible to receive additional pay when working more than 40 hours in a given week. The law is split into two classifications: exempt and non-exempt employees, and determining which category you fall in will let you know whether or not you are owed overtime pay.

Non-Exempt Employees

Those individuals who are considered non-exempt employees are the ones who are eligible for overtime pay. Aside from a few exceptions, this will almost always include those individuals who are working for an hourly rate. Beyond hourly wage earners, classifying workers becomes a bit more difficult. As a general rule, if you are making less than $2,774 per month, you are eligible for overtime pay—even if you are salaried.

Non-exempt employees are entitled to the following, additional compensation:

·         Pay rate of one and a half for each hour worked over eight hours in a day

·         Pay rate of one and a half for each hour worked over 40 hours in a week

·         Pay rate of one and a half for the first eight hours of the seventh consecutive day of working in a week

·         Double the pay for every hour worked over 12 hours in one day

·         Double pay for every hour worked beyond eight hours on the seventh consecutive day of work in one week

Exempt Employees

Exempt employees almost always includes individuals who are paid salary, meaning they have a set amount of money they make each year, no matter how many hours they work in a week – this is typically contingent on the agreement that an employee still works 40 hours.

There are special considerations for salary wage earners that may place them in non-exempt status. The following types of employees may be able to earn overtime in California:

·         Executive employees

·         Administrative employees

·         Professional employees

·         Outside sales employees

·         Computer professional employees

There are exempt versus non-exempt employee tests that individuals in these classifications can take in order to find out their status.  It is important that you are well versed on the California overtime law so that you can ensure that you always receive full and proper payment for your work.

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Oilfield Layoffs in Texas: Recovering Unpaid Overtime Wages Owed

More and more oilfield jobs in Texas are estimated to be cut this year due to the recent drop in oil prices. While this is a common occurrence in this fluctuating industry, it's important that oilfield and gas employees are aware of their rights throughout the process. The most overlooked factor in energy company job cuts are the employee's right to recover unpaid overtime wages. It's vital that employees know that they likely still have the right to recover any overtime wages that were illegally withheld, regardless of what they sign.

Throughout the industry, it's not uncommon for workers to be unlawfully misclassified as "exempt" to avoid paying overtime. While overlooked in the past, officials have cracked down on this practice as proven by a steady stream of claims filed on behalf of oilfield workers looking to recover unpaid overtime. The most common schemes are as follows:

1.       Day Rate Pay with No Overtime

2.       Straight Time Hourly Pay for All Hours

3.       Salary (sometimes plus bonus and/or day-rate) with No Overtime for “field” type jobs that do not qualify for exemption from the overtime rules requirements.

Employees should understand that they can't simply "sign away" their right to overtime – there are many legal steps to take before this can happen. It's also important to know that if you received a severance pay, it doesn't necessarily cover any unpaid back overtime paid. Most overtime cases can only seek recovery for 2-3 years prior to filing the claim so if you think you may be owed unpaid overtime, it's vital to contact an experienced lawyer to get more information to your potential entitlement to overtime.

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Who is Exempt from California Overtime Law?

California overtime laws are some of the strictest in the country, and exempt employees must meet many requirements to be considered exempt. Those who qualify to be exempt from California overtime law include those whose main responsibilities are to manage a business, department, or subdivision, they supervise regularly and direct the work of at least two subordinates, have the authority to hire, fire, and decide on wages for their employees, or recommend such for other employees of other employees. More than half the workday must be spent doing things that relate to management and include discretionary power or at least 20% equity ownership in a business as well as active involvement of the management of said company.

Day rate overtime pay laws along with other overtime rules and regulations can be complicated and should be investigated thoroughly to determine whether or not you are exempt. Below are a few career paths of those who are exempt from California overtime law, some of which can be day rate workers:

Learned Professional A learned professionals duties require advanced knowledge from specialized educational instruction. A learned professional usually is only exempt if they are licensed or certified, which include law, dentistry, medicine, teaching, engineering, accounting, architecture, optometry, and teaching. These careers allow the employee to have the choice of how to accomplish non-standardized work for more than 50% of the time.

Computer-Related Careers This is meant to protect programmers, systems analysts, software engineers and specialists and must be paid a minimum amount to be exempt. This is similar to the Learned Professional exemption.

Creative Professional A creative professional's job requires creativity, invention, originality and any talent in an artistic field.

Administrative Professional Duties include doing office work related to the business, management, or customers which requires independent judgment more than half the time.

Sales Professionals A sales professional must be 18 or older and responsibilities include making sales or orders, and those who work away from the business selling items more than half of the time. These employees receive commission as payment.

Doctors and Surgeons A physician or surgeon where a medical license is required, as must be paid minimum wage set by the state of California.

Highly Compensated Jobs Employees have a yearly salary of $100,000 not including any type of benefit. Those who are excluded from this exemption include blue collar workers, police officers, fire fighters, paramedics, EMTs and other first responders.