Wage & Hour FMLA Overtime Requirements under Federal Law

                  Published on August 16th, 2018 | by sklawfirm_necqdc


                  Federal Overtime Law in the United States: The FLSA Explained

                  Most wageworkers in the United States are entitled to compensation at or above the minimum federal wage for up to 40 hours of work per week, but at least 1.5 times their wages for anything worked over 40 hours a week.129 USC §207. This is not an option or a perk that an employer can choose to offer or not offer. Federal law mandates overtime compensation. Workers who have been wrongfully denied overtime pay can seek compensation for the overtime they worked.

                  What is “overtime” work and pay?

                  Overtime is any amount of time worked over a 40-hour workweek.229 USC §207. A workweek is any consecutive 168 hours, or 24 hours over 7 days. A workweek can begin on any day and end seven days later. For example, a person who starts work on Monday has a workweek from Monday to Sunday, but someone who works on Sunday would have a workweek that ends on Saturday. During that 168-hour stretch, a wage-earning employee may work 40 hours per week, and anything over that is considered overtime.

                  These working hours may not include breaks for lunch, travel to and from work, sleep time, or other time not necessarily deemed to be working time, so long as the worker isn’t required to do any work or be ready to work during these times.3U.S. Dept of Labor. Breaks and Meal Periods. (Accessed Aug 10 2018.) For example, a worker forced to work through what should be their lunch break should be compensated for that time.

                  However, if an employer provides a rest break during working hours of less than 20 minutes, this is considered working time, since the break is considered a benefit to the employer.4U.S. Dept of Labor. Breaks and Meal Periods. (Accessed Aug 10 2018.) The labor laws of many states, however, may make rest breaks mandatory.

                  Why overtime pay?

                  In the early 20th century, many blue-collar workers were subject to very long workdays for low pay and in dangerous conditions.5Jonathan Grossman. Fair Labor Standards Act of 1938: Maximum Struggle for Minimum Wage. United States Department of Labor. (Accessed Jun 1, 2018.) The federal government passed laws to protect workers from exploitation. Almost all forms of child labor were made illegal or were severely restricted. Workers could not be forced to work in hazardous conditions without compensation for their injuries, and they could receive retirement income through the newly created Social Security system. During this time, new federal labor laws also set the federal minimum wage and a mandatory set workweek of 40 hours. Understanding that some people may still need to work more than 50 hours a week, the overtime pay law was passed. This was to discourage exploiting workers by compelling them work long days as part of their regular employment, to compensate workers forced to spend extra time at work, and to encourage employers to hire more workers instead of overworking the ones they had.6Jonathan Grossman. Fair Labor Standards Act of 1938: Maximum Struggle for Minimum Wage. United States Department of Labor. (Accessed Jun 1, 2018.)

                  What federal laws mandate overtime pay?

                  The Fair Labor Standards Act of 1938729 USC §207. mandates overtime pay for all wageworkers in the United States. However, many states and counties have their own overtime pay laws as well, offering more than the minimum protection set out by the federal laws.

                  California’s overtime laws, for example, require employers to pay their workers overtime if they work more than eight hours in a day. More conservative states, on the other hand, (like Kansas, where I practice) only give employees a right to overtime if they work more than 46 hours in a week.

                  Who is entitled to overtime pay?

                  Most wageworkers and some salaried workers that earn money per hour worked and are subject to the federal minimum wage law are entitled to overtime pay.829 USC §213(a)(1). These employees would normally receive a W-2 at the end of the year for tax purposes. However, there are many workers that are exempt from overtime pay.

                  Who is exempt from overtime pay?

                  Overtime pay was created specifically to protect blue-collar workers, but as the working world evolved, the law evolved to protect many types of workers who may be at risk of being exploited in the workplace. However, there are still some workers, due to the nature of their jobs, the type of work they do, and when they work that make them exempt from receiving overtime pay as a matter of law. These workers include:

                  “White Collar” Employees

                  Those who receive a minimum salary of more than $23,600 are often exempt from federal overtime requirements, as long as they primarily perform white collar duties. This includes administrative, professional, and executive workers.

                  To meet this exemption, the worker must be paid a salary. This means that their pay cannot depend on the number of hours or minutes they work. Rather, these workers receive set amounts of payment at regular intervals regardless of when they come into work. They don’t punch a clock, they don’t work a shift, and they don’t have to sign in or out for breaks or meals.

                  Certain Seasonal Workers and Farm Workers

                  These workers tend to not be employed or stay in the same job all year round, though the work may demand temporary long hours.

                  Seamen and Fishing Boat Operators

                  Like seasonal and farm workers, seamen and fishing boat operators may be required to work long hours during a particular season but not on an ongoing basis, and may not work at all during some part of the year.

                  Independent Contractors

                  Independent contractors are not employees.

                  State employees

                  State employees are subject to the state employment laws of the states they work in because the labor laws governing state employees are rights reserved to the states through the 10th amendment.

                  Workers Who Don’t Usually Get Overtime

                  • Pharmaceutical sales persons.
                  • Some small newspaper employees.
                  • Criminal investigators.
                  • Babysitters and caregivers for older adults.
                  • Ministerial workers.
                  • Domestic workers.
                  • Computer professionals and outside sales employees who make more than $57,470 a year.929 C.F.R. §541.

                  Some of these workers may eligible for overtime pay by state law or by contract with their employer. In that case, they can seek compensation if overtime pay is earned but not paid.

                  When does overtime pay apply (and when does it not apply)?

                  As soon as 40 hours are worked in one consecutive, 168-hour week, overtime pay kicks in. However, under federal law, overtime pay doesn’t apply to weekends, holidays, or nights if those hours worked are not over the 40-hour workweek minimum. Some states may allow overtime or double-time for holidays, which is above the federal minimum overtime pay.

                  If a state has its own overtime laws, which law applies?

                  Both state and federal laws apply. The federal overtime law is the minimum protection offered to all non-exempt employees in the United States. The reason for this is because federal law is supreme, and no state may break federal law by allowing its citizens less than the protections under federal law. However, many states have overtime laws that grant more than the federal minimum. In that case, employers must follow the state law. By following a valid overtime pay state law, they are automatically following the federal law.

                  Overtime Violations

                  No employer may deny a non-exempt employee overtime pay. However, if an employer fails to pay overtime to a deserving employee, the employee has a legal right to seek compensation.

                  Common Questions

                  My employer says I can only be paid for the first 40 hours I work, and that I can’t claim any more work hours, even if I have to work those hours. Is that legal?

                  This is unlawful. You are entitled to overtime pay for any hours worked over 40 hours a week. If your employer forces or compels you to work more than 40 hours a week, you’re entitled to compensation. You may also be entitled to compensation if your employer doesn’t outright demand or insist that you work more than 40 hours, but in order to keep your job or avoid retaliation, you must work overtime. In this case, you can still seek compensation for that time.

                  I have an employment agreement that reads “no overtime.” Is this enforceable?

                  This depends on the nature of your employment. If you are an employee who is not exempt, then you are still entitled to overtime pay, because no employment agreement may interfere with rights that are protected by federal law.1029 USC §541.4. However, if you’re an exempt employee, then you are not entitled to seek overtime pay.

                  My employer says that instead of taking overtime pay, I can take extra time off. Is this fair?

                  In most cases, no. It’s legal to offer paid time off in lieu of overtime to federal employees who work more than 40 hours a week.1129 USC §207(b)(1). For federal employees, the time off much equal one and one half hours for each hour of overtime.1229 USC §207(o)(1). Otherwise, under federal law, your employer doesn’t get to choose not to pay you overtime in exchange for something else.

                  There have been efforts to change the FLSA to allow time off in lieu of overtime pay. The House of Representatives passed a bill proposing an amendment to the FLSA of 1938 to provide paid time off up to 160 accrued compensatory hours in lieu of overtime pay for employees in the private sector.13H.R. 1180, 115th Cong. (2017). The bill was passed by the House of Representatives on May 5, 2017, but has not been passed by the Senate or the President, so it is not currently law.

                  I normally punch a clock, but I do work before and after that. Should I be paid for it?

                  Yes, if the amount of time spent on these tasks is significant. Any action a worker does to further their employer’s interests is likely work, and is definitely work if the employer instructs the worker to do something related to the job. Wage workers who do off-the-clock work, like open the store or shop before they punch in and close up the store before they punch out, must be compensated for their time because they’re still working, and what they do benefits their employer. Specific acts that happen before or after normal working hours, like opening up, closing, making deposits, and taking or making deliveries is work, and if it done in excess of a 40-hour workweek, the employee must be compensated.

                  How do I receive back overtime pay?

                  You are entitled to receive back overtime pay for any overtime pay you should have rightfully received. Some states allow you to recover both the lost overtime and interest on the back overtime pay.

                  There are a few methods for doing this:

                  Method #1: Report the employer to the Wage and Hour Division of the Department of Labor.

                  You can report your employer by calling the Department of Labor or in person by visiting a Department of Labor Wage & Hour Division in your state. There are Wage & Hour Division offices in major cities in every state.

                  Method #2: The Secretary of Labor may bring its own lawsuit against the employer or seek an injunction to keep an employer from violating the FSLA.

                  Sometimes, if an employer has refused to pay overtime to many employees over many years, the Secretary of Labor may seek an injunction against the employer to keep them from refusing to pay overtime. An injunction is a legal remedy that a civil court grants to a party who is continuously hurt by another party’s ongoing actions. The judge orders an injunction that forbids the harmful behavior. If the behavior continues, the party responsible will be held in contempt of court, which could result in fines or in some case, incarceration.

                  The Secretary of Labor may bring seek an injunction against an employer that is currently violating the FLSA to stop the harm immediately while it investigates. It may then bring a lawsuit against the employer for the back overtime pay. This, however, is more likely to happen if the employer is fairly large, or if there’s many employees who have been wronged.

                  Method #3: Sue the employer for violation of the FSLA.

                  You have the right to sue your employer in in federal court in state court for overtime pay withheld in violation of the FSLA. To do so, you would file your own lawsuit.

                  Is there a limit to the back overtime pay I can ask for?

                  There’s no limit on the dollar amount so long as it’s what you should have been paid. However, there are time limits for asking for back overtime pay:

                  • Two-year limit for accidental or unintentional violations of the law.1429 USC §255(a). In this case, only about two years of back overtime pay may be recovered. This is the case if an employer accidentally or by mistake withheld overtime pay. For example, accounting errors or timesheet mix-ups would be considered unintentional violations of law.
                  • Three-year limit for willful violations of the law.1529 USC §255(a). However, in cases where an employer knows that an employee has worked overtime and is entitled to overtime pay but refuses to pay it, the employer is committing a willful violation of the law.

                  These limitations mean that you can only seek back overtime pay within the two- or three-year limit. So, if your employer has been intentionally withholding overtime pay for four years in violation of the law, you can’t seek overtime from the first year. You can only seek it going back three years from the date you file suit or report your employer. If the employer withheld overtime pay accidentally, you may only seek overtime pay for the last two years.

                  Can my employer fire or punish me if I seek back overtime pay?

                  Your employer may not retaliate against you if you seek back overtime pay. In fact, your employer may not fire or otherwise punish you for asserting any of your rights in the workplace. With that being said, unless you have reason to believe your employer will retaliate if you ask for the overtime pay that was wrongly withheld, it’s wise to ask your employer about the overtime you worked but for which you were not compensated.

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