Common Questions About Overtime Pay

Am I owed unpaid overtime?

The answer, of course, is that it depends.  Under the Fair Labor Standards Act, employers are required to pay employees one-and-a-half times their regular rate of pay for each hour worked above forty in any given week.  The two most common issues that I see when evaluating overtime pay cases are (1) whether the worker is an employee or an independent contractor; and (2) whether the worker is exempt from overtime pay under the exemptions of the FLSA.  For more detailed discussions of these issues, click here and here.  The answers to these questions are often highly fact-specific and require an attorney with a strong knowledge of unpaid overtime laws.  As you can see from my blog, I have written extensively on FLSA issues, and I focus on representing workers who are owed overtime wages.  I provide a free consultation for all workers with overtime pay questions.

How much does an overtime attorney cost?

Some employment attorneys charge by the hour.  Others require their clients to pay fees and expenses related to filing and pursuing an unpaid overtime case.  I do not.  The overtime cases that I accept are handled on a contingency fee basis.  In other words, if my clients do not recover money, I do not get paid.  For more information on my approach to overtime cases, click here.

How can I get overtime pay I am owed?

Generally, you have two choices.  You can hire a private attorney to pursue a claim, or you can file a complaint with a government agency.  I strongly suggest that anyone with an overtime pay issues consider hiring an attorney who will fight to get the most for their client rather than relying on a government bureaucrat with no interest in their case.  For more information on how to pursue an overtime case, click here.

What am I entitled to recover if I win my overtime case?

Workers who win their overtime case are allowed to recover all of their overtime wages, liquidated damages in an equal amount, and their attorney’s fees.  For more information on remedies available in an overtime case, click here.

How long do I have to bring a claim for unpaid overtime?

Overtime laws generally permit recovery for work performed two years or less from the date a lawsuit is filed, though a worker may be able to recover up to three years of overtime wages if the court determines that the employer willfully violated overtime laws.  It is important to act as soon as you believe your overtime pay rights have been violated because nothing but the filing of a lawsuit stops the clock from running on your overtime claims. Merely complaining to your employer, or a government agency does not stop the clock.

What are liquidated damages?

In most cases a worker that wins an overtime case is entitled to an have their actual damages doubled. These “double damages” are also called liquidated damages. The same willfulness standard for the three-year statute of limitations to apply also applies to the issue of whether liquidated damages should be awarded. The award of liquidated damages is mandatory unless employer shows that (1) act or omission giving rise to violation was in good faith and (2) he had reasonable grounds for believing that his act or omission was not a violation of the overtime laws. This is a very difficult burden for the employer to meet.

Can I only bring claims for unpaid compensation against a current employer?

One of the most common misconceptions among workers is that they have to be a current employee to get back overtime wages.  THIS IS NOT TRUE!  Workers can sue their former employers, as long as they have worked for them within the past 2-3 years.  However, because of the time limitations for filing overtime pay claims, former employees must speak to an overtime attorney quickly to avoid losing their legal rights.

Am I entitled to bring a claim for unpaid overtime wages if I made an agreement with my employer to work overtime but not to be paid time-and-a-half?

Workers cannot waive their rights to overtime pay.  Any agreement that seeks to contractually limit a worker’s right to overtime pay is void and will not be enforced.  Overtime pay is the law – it cannot be altered by agreement.

Can I bring a case for unpaid overtime if I do not have my time records?

Workers often worry that they will not be able to win their overtime case if they do not have their time sheets.  This is not true.  A worker can obtain time sheets from his or her current or former employer through discovery in an overtime lawsuit.  And if the employer has lost, destroyed, or failed to keep time records, this is an additional violation of the overtime laws and the burden will fall on the employer to disprove the number of overtime hours that the worker claims to have worked.

Do I have a claim for unpaid overtime if I was paid in cash?

Yes.  Employers sometimes seek to hide their scheme to cheat their workers out of overtime by paying in cash.  This does not work.  Employers are required by law to keep records of how much their workers are paid, and how their pay is calculated.  If they do not, this may actually benefit the worker’s overtime case.

If I claim my overtime wages, can my employer retaliate against me?

The Fair Labor Standards Act contains an anti-retaliation provision, which makes it illegal for any employer to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [overtime pay].”  Employees are protected regardless of whether the complaint is made orally or in writing. Some courts have ruled that internal complaints to an employer are also protected.  However, I strongly recommend that anyone with overtime pay concerns speak to an overtime attorney who can make sure that their legal rights are protected.

Are salaried employees eligible for overtime wages?

As with the first question, it depends.  Just because an employee is paid on a salary basis does not mean that they are not eligible for overtime pay.  In fact, many employees that are paid a salary must be paid overtime.  As discussed in more detail here, the issue is whether the worker falls within one of the FLSA’s overtime wage exemptions.  An experienced overtime attorney can hep you determine whether you are eligible for overtime pay.  Secretaries, loan officers, repair technicians, paralegals, assistant managers, inspectors, installers and dispatchers are just a few of the types of jobs that are sometimes paid a salary but may also be eligible for overtime pay.  If you are paid a salary and have questions about your rights to unpaid overtime, call me for a free consultation.

If my employer issued me a 1099, can I still pursue an unpaid overtime case?

I’m an independent contractor, should I be getting overtime wages?

These are two ways of asking the same question.  Employers often misclassify their workers as independent contractors or “1099 workers” to avoid paying employment taxes and overtime wages.  This does not mean that the workers are not due overtime pay.  As described more fully here, as a general matter, if a worker works full time for a company and is paid by the hour, he or she is an employee, not an independent contractor, and should receive overtime wages.  If this describes your situation, call me so we can discuss your legal rights.

Can I get overtime pay if my employer gave me comp time off for my overtime hours?

Private companies cannot as a general matter give their employees “comp time” instead of overtime pay.  The FLSA requires private companies to give their workers time-and-a-half for each hour worked above forty in any given week.  Call me for a free consultation if your employer has a policy of giving “comp time” instead of overtime pay.

Am I entitled to be paid for my travel time?

As a general matter, travel from home to work does not count as time worked for overtime purposes.  However, time spent traveling from a central office to a job site or from one job site to another does count as time worked and should be included when calculating overtime pay.  I have written a more detailed blog post on this issue here.

What if other workers want to join the unpaid overtime lawsuit?

The FLSA allows workers to go in on a lawsuit together.  It is not unusual for me to represent  several employees in the same suit.  The FLSA allows a worker to file a “collective action,” in which a worker files suit on behalf of himself or herself and on behalf of other, similarly situated workers.  Collective actions can be a powerful and effective tool in recovering overtime wages, since if the court decides to certify the collective class, all similarly situated workers will receive notice of the lawsuit and will be permitted to join it.