Wages and Hour Disputes

As an employee, you have rights under the Fair Labor Standards Act (FLSA), a federal law that protects workers. The FLSA requires that certain workers receive time and a half for hours worked over forty (40) per week, even if the employer claims the work is unauthorized, and also requires that workers be paid for all time spent on the job, including participation in safety meetings, putting on or taking off uniforms, putting away tools, and other work-related activities.

Companies often pay their employee's salaries vs. paying hourly to avoid overtime pay. Being paid a salary does not automatically mean you are not entitled to overtime. Some salaried workers are "misclassified" and should be paid by the hour. If you participate in work-related activities and are not paid, or you were salaried, but work overtime, you may have legal rights to recover.

1. Are you entitled to overtime? Under the FLSA, a worker is either exempt or non-exempt from overtime pay. Non-exempt workers who are entitled to overtime are generally "blue collar" workers, manual laborers, licensed practical nurses, paramedics, or others who perform non-technical, routine duties with little or no supervisory authority or discretion. Whether someone is exempt or non-exempt is very difficult to analyze. A detailed factual description of the job is necessary to make a determination. Many companies improperly classify employees as exempt to avoid paying overtime.

** Examples of positions or industries where workers may be misclassified and entitled to overtime: assistant managers, manager trainees, cable installers, call center employees, computer/IT/CAD designers or engineers, drivers, field service technicians, field engineers, independent contractors, inventory taker, recruitment consultants and retail store employees.

2. Do all non-exempt workers get overtime? If you are non-exempt and work in excess of forty (40) hours per week, you are entitled to overtime. Overtime is time and one-half for all hours over forty (40). Only government employees can be paid comp time, leave time, or other substitutes for overtime pay.

3. Are salaried workers entitled to overtime? An examination by an attorney at Sutton Law, can help determine if a salaried employee is in fact eligible for overtime pay.

** Examples of improperly classified employees are: assistant managers, assistant manager trainees, entry level and mid-level management with very little supervisory responsibilities, supervisors who perform manual labor, clerical workers, bill collectors, and a host of other employees who do not perform supervisory work or exercise discretion.

4. What is classified as work time? Work is generally any labor or effort that benefits the employer. Many companies require employees to participate in company activities for no pay. Some examples are pre-work meetings, Saturday meetings and safety training. The FLSA may require that you be paid for this participation even though many companies expect you to attend or participate for free. The law requires that you are to be paid for all work time.

5. You may be entitled to overtime for working "off the clock." You may be entitled to pay for these activities: use of automatic time clock systems, putting equipment or uniforms on before work, taking uniforms off or putting equipment away after work, staying after work to divide tips, count registers, or cleaning the premises.

6. Can my lunch period be deducted? Generally, lunch time of a half hour or more, provided you are free to leave the work site and are not subject to call to work, is deductible. However, if you stay on the premises, are subject to call during your lunch break or are frequently interrupted by work related activities, your lunch period may be considered work and you may be entitled to be paid.

7. If I take work home, is it considered compensable? If you perform work at home, either with or without your company's specific authorization, you may be entitled to pay. Examples of working at home are doing paperwork, answering emails, returning calls, or other work for your job. If your employer knew or should have known that you worked at home, you may be entitled to be paid.

8. Can my company deduct break time from my pay? Generally, breaks that are twenty (20) minutes or less are considered work time and you should not be deducted.

9. What if I am required to be "on call?" Usually, stand by or on call time is payable only in situations where the company imposes restrictions on your movements and activities, you have a very short time frame to report to work time, and you are frequently called to work.

10. Are Independent Contractors entitled to overtime? Many companies hire workers as independent contractors. However, the law may consider you an employee and you may legally be an employee and entitled to overtime if the company controls when and where you work and what you do, or provides your tools and materials, or prevents you from working for other people or businesses. Examples of "independent contractors" who legally may be employees and entitled to overtime include welders, truck drivers, painters, carpenters, laborers, mechanics, and telecommunications repairmen.

11. What deductions can my employer make from my pay? Depending on the state you are in, your employer may not be able to deduct things such as training costs, uniforms, tools, retirement contributions, or wage garnishments. Under the FLSA, deductions cannot result in your pay falling below minimum wage.

12. What if I receive tips? In some circumstances, you are entitled to receive all of the tips left by a customer. If your employer is deducting part of your tips, you may be entitled to overtime pay.

13. Can I be fired for asserting my rights? The FLSA contains a specific provision that prevents retaliation. This means the company cannot legally take any action against you for asserting your rights under the Fair Labor Standards Act.

14. What are my rights and remedies? If you are not paid overtime or minimum wages as required by the law, you may recover:

  1. Back pay for all amounts owed but not paid;
  2. Liquidated or double damages;
  3. In some cases, you're legal costs and attorney fees;
  4. You can bring a lawsuit for yourself and a "collective action" for other workers;
  5. Your lawsuit must generally be filed within two years and, in some cases, three years.

If you have any questions about either your employee's rights or your rights as an employee under the FSLA, please call our attorneys at Sutton Law at 859-578-6600.  Speak with a professional, experienced lawyer that will guide you through the complexities of your wage and hour dispute questions.

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