Overtime pay is usually paid at one and a half times your normal rate of pay. In most cases, if you work over 40 hours per week, you are entitled to overtime under Federal Labor Laws. However, there are some exceptions to this general rule. If you do not fall within one of the exceptions and your employer fails to pay you overtime, you can pursue your case with the Department of Labor or in federal or state court. Usually, back pay as well as any legal fees can be awarded.
Federal law mandates that more than 40 hours of work in a workweek is considered overtime. Many states provide even more protection for workers and specify that any time worked more than 8 hours in a single day is to be paid as overtime.
Federal laws governing overtime pay are codified under the Fair Labor Standard Act (FLSA), which is overseen by the Department of Labor. Although the laws dealing with overtime define the pay rates for overtime, they also provide some exemptions to the requirements of employers to pay overtime.
Most failures to pay overtime occur due to a misclassification of status between exempt and non-exempt. If you believe you are being unfairly denied overtime wages, you must first determine whether you are an exempt employee.
Under the Fair Labor Standards Act the classifications of exempt and non-exempt employees determine your legal right to overtime payments. Employers do not have to pay exempt employees overtime. Generally exempt positions include executive, administrative, professional or computer employees. Only salaried employees are considered exempt, but not all salaried employees are exempt.
The FLSA also provides further definition of the classifications of employees that are exempt. Executive exemptions are not limited to the top few employees; these can include any employees who have responsibility to direct part of the company's business, along with employees who are responsible for the work of two or more other employees and employees who have authorization or an advisement role in hiring and firing employees.
Administrative positions are defined as those that deal with the management or general business operations of a company or of its clients. These jobs are primarily office jobs and not manual labor jobs.
Professional positions are ones that require advanced training or education, and positions in which the employees are involved in creativity, invention or specific talent related to the business of the company.
The final category of exemptions is computer positions that consist of employees whose primary duties are computer related.
Companies that have an annual dollar volume of at least $500,000 fall into another class of businesses, termed enterprise businesses. The employees of these companies are protected under the FLSA regardless of their position. These employers are typically schools, hospitals and government agencies.
If you are not an exempt employee, your employer is required to pay you overtime under federal and/or state law. If your employer files to pay, you can file a Wage and Hour claim with the Department of Labor. Although each state's procedure are different, generally the Department of Labor will first determine your status as an employee. The Department of Labor generally only has jurisdiction over employees, not over independent contractors.
After the Department of Labor has determined that you are an employee and that they have jurisdiction over the case, the process of resolving your unpaid overtime claim begins. In some states, you and your employer are required to attend mediated conferences to resolve the dispute. Failure to attend these conferences can result in dismissal of your claim.
If no resolution is reached, the unpaid overtime claim progresses to a hearing. The hearing is presided over by an administrative official in the Department of Labor. Both you and your employer can present witnesses, business records, and other information to prove your case. A binding decision is reached at the end of the hearing regarding your entitlement to overtime wages. If you are entitled to overtime and it was denied, your employer is required to pay back pay, often with interest. If it is determined that the employer's denial of overtime wages was willful and unreasonable, you may be entitled to liquidated damage at double the amount owed.
A qualified labor lawyer can help you determine how best to prepare your case, and whether you should file a complaint with the Department of Labor and/or a lawsuit for unpaid wages.