Many employees are entitled to overtime pay, but are not receiving it as the law requires. To determine if you are eligible, ask yourself the following four questions.
Do you work more than 40 hours a week?
Sherlock Holmes said that we should never overlook the obvious. To be entitled to overtime under the federal Fair Labor Standards Act (FLSA), you must work more than 40 hours a week. If you work less than 40 hours you are not entitled to overtime under the FLSA, although certain states (and collective bargaining agreements) give employees the right to overtime if they work more than eight hours in a day.
Are you paid time and a half for hours over 40?
There are many different ruses an employer uses to deprive employees of their overtime. Some employers issue comp time in lieu of overtime, or "bank" hours. This is illegal because it deprives you of the overtime premium. Some employers pay straight time -- one hour's pay for every hour worked over 40, rather than time and a half. Some employers don't pay time and a half, but instead pay half time or a fluctuating rate. The half-time and fluctuating rate may be permissible, but you need to speak with a lawyer to make sure.
Are you properly classified as salaried and exempt from overtime?
There are many exemptions and exceptions to the exemptions under the FLSA for salaried employees. Professionals, highly compensated employees, managers and other categories of employees may be exempt from (not entitled to) overtime, but only if they meet the requirements of the law. For highly compensated employees, there is a bright line rule by which an employee making more than $100,000 a year is exempt, but even so, you may be entitled to overtime under your state laws.
The managerial and administrative exceptions have the most grey area. The more discretion you have, the more likely you are exempt, but you must meet a list of job duty requirements in order to be exempt from overtime.
You also have to be paid a salary to be exempt from overtime. If you are paid a salary, you earn the same amount in each week when you work, regardless of how much work you do or how many hours you put in. You also cannot have your pay docked except in a few limited situations. If your employer pays you hourly or changes your salary based on hours, you may still be entitled to overtime, even if your job duties would otherwise make you exempt.
What are the damages if I'm owed overtime?
If you can prove that your employer willfully violated the law, you are entitled to double damages plus attorney fees, for a three-year period. If you can't show that the violation was willful, you may collect damages for a two-year period. If your employer has underpaid a large number of employees, you may be able to bring a class action as a group. In this situation, the employees who serve as "lead plaintiffs" in the case may be eligible for an incentive award equal to 1 or 2% of the total class recovery. As you can see, these damages can add up quickly.
If you believe your employer is illegally failing to pay you overtime, talk to an experienced employment attorney right away to find out the best way to protect your rights.