1. Believing Salaried Employees Are Not Entitled To Overtime Many employers are under the mistaken belief that only employees earning wages on an hourly basis are entitled to overtime. The fact is that an employee is not prohibited from receiving overtime wages simply because they are paid a set salary. In order for a salaried employee to be prevented from receiving overtime, the employee must qualify for one of the specific exemptions provided by the Fair Labor Standards Act (“FLSA”). These exemptions include, among others, the “executive” exemption, “administrative” exemption, and “professional” exemption. Each salaried employee must be evaluated to see whether an exemption applies to them. If no exemption applies, the employee must be paid overtime wages for all hours worked over forty (40) in a workweek. And in the largest overhaul of U.S. overtime law in history, all employees will be automatically eligible for overtime pay unless they are paid more than $50,000 per year.
2. Misclassifying Employees In Order To Avoid Paying Overtime Employers may try to avoid paying overtime by giving an employee a fancy or important sounding title, such as “manager” or “supervisor,” to try to make the employee fit into one of the narrow exemptions under the FLSA. However, it is not an employee’s title that determines whether an employee must be paid overtime; it is the actual job duties that the employee performs and the pay they receive. If the responsibilities of the employee do not fall within one of the FLSA exemptions, the employee is entitled to be paid all overtime wages earned, regardless of his or her title.
3. Not Paying Employees for Meal Time or Breaks The law typically requires employers to pay their hourly employees for breaks that last less than twenty (20) minutes. Additionally, although employers are permitted to automatically dock their hourly employees for a 30 or 60-minute meal break each day, it is essential that the employee is completely relieved from duty and is not performing any work whatsoever during this meal break. The FLSA requires that the employee be paid for meal time if, during this period, the employee is required to continue performing work duties or are not otherwise completely free from performing his or her job obligations. If automatic deductions have been made for meal times, the employer must credit back the time to the employee under these circumstances, but employers rarely do.
4. Refusing To Pay Overtime If Not Approved In Advance Often employers do not pay overtime if the employee did not seek and obtain advanced permission to work overtime. The FLSA, however, does not distinguish between approved and non-approved overtime. Therefore, if the employee works overtime hours, the employer must pay for that overtime, even if the overtime work was not pre-approved by the employer.
5. Allowing Employees To “Waive” Their Right To Overtime Some employers incorrectly believe that an employee can waive their right to compensation for overtime hours worked. The overtime requirement, however, may not be waived by agreement between employer and employee. An agreement that only eight (8) hours a day or only forty (40) hours a week will be counted as working time also fails the test of FLSA compliance.
6. Combining Workweeks Employers often try to escape paying overtime by averaging an employee’s hours over two (2) or more workweeks in order to avoid having an employee work over forty (40) hours in either workweek. For example, if an employee works thirty (30) hours in one workweek, and fifty (50) hours in the next, the employer may not average the hours into two (2) forty (40) hour workweeks. The employer must pay ten (10) hours of overtime for the fifty (50) hour workweek.
7. Meeting and Training Time Some employers require employees to attend meetings or training sessions, but do not pay the employee for those hours. If the meetings or training is directly related to the employee’s job, and is considered mandatory or for the benefit of the employer, it is compensable time and must be included when calculating the employee’s wages and overtime.
8. On-Call Work At times, employers require employees to be “on-call” when they are not scheduled to work, requiring the employee to be available to be called into work at a moment’s notice. When this occurs, employers often fail to pay the employee for this time. Determining whether an employee’s on-call time is considered work-time for which compensation is required depends on the facts involved. The general rule is that if an employee is required to remain on-call on the employer’s premises or so close that they cannot use the time effectively for their own purposes, the waiting time is considered hours worked under the FLSA and is compensable.
9. Working “Off-the-Clock” Employers sometimes fail to pay employees if the employee arrives to work early and begins working before the shift begins. This “pre-work” time counts as work time and must be included as part of the employee’s compensation under the FLSA, provided the employer knew or should have known that the employee was beginning work early. Similarly, if an employee performs work after the end of the shift, this “post work” time must also be compensated.
10. Unpaid Final Paychecks Employers will sometimes fail to pay employees their final paycheck upon termination or resignation. When an employee has worked during the final pay period but does not receive payment, this violates the FLSA.