As the recession continues, it seems that we’re seeing more and more employers getting into trouble by failing to pay overtime. As times get tough for area businesses, cutting overhead by limiting overtime is one way to increase your cash flow. But to force your employees to work for straight pay when overtime pay is owed…. well, that’s illegal.
One angle we’re seeing is employers who classify an employee as being "exempt" from overtime when in fact, they are "non-exempt" employees. Exempt employee classifications would include executives, administrators, professionals, outside sales persons or independent contractors. These employees are exempt from overtime pay. But, just because an employer calls you an "administrator" doesn’t mean you are….. The title may sound nice and even impress your friends, but wouldn’t you rather have time and 1/2 if you’re working overtime.
We’re also seeing area employers forcing employees to work "off the clock". Employees are asked to not record the time they actually worked or to work through their break or meal time. Other violations include:
1. failing to pay overtime for travel from shop to work-site and back,
2. not paying OT for time spent working while traveling,
3. failing to pay OT for attendance at lectures, training and meetings, or
4. failing to pay OT when the employee is required to arrive early to make necessary preparations for work.
Often times, the employee just does what is asked because they are just thankful to have a job and they don’t want to rock the boat. There is a fear that if the employment boat is rocked, they might get fired. But the law protects you from that type of retaliatory behavior. It is illegal for employers to retaliate against employees who demand to be paid the OT that they are due.
Lastly, keep an eye out for employers who do any of the following:
1. deny OT pay because they say you didn’t get permission or approval in advance,
2. incorrectly calculate OT pay by carrying one week’s OT hours over into another week, or
3. grant employees time off in lieu of overtime pay.
Mr. Smith has practiced as a trial attorney since graduating Notre Dame Law School in 1992. He has litigated cases across the country including cases from Ventura County, California to Middlesex County, New Jersey. He practices in both State and Federal courts.