Frequently Asked Questions

To quote from the United States Department of Labor website, “The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. Covered nonexempt workers are entitled to a minimum wage of not less than $7.25 1 per hour effective July 24, 2009. Overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek.”

So basically, if you are an nonexempt employee you must be paid 1 ½ times your regular pay rate for all hours worked over 40 in your work week.

Generally, it is any employee that is not an exempt employee. Unless you are a bona fide executive, administrative, learned professionals (doctors, lawyers, etc.), certain computer employees are exempt from FLSA overtime, provided they meet specific salary level and job duties tests. So unless you are an exempt employee, you are generally available entitled to overtime for over 40 hours of work during the workweek.

WRONG! Whether you are paid hourly or receive as salary does not impact the overtime analysis. Nonexempt salaried employees still must be paid overtime.

Misclassification of employees is an area of much litigation in the overtime world. Many employers call certain employees managers or assistant managers to avoid paying overtime. Generally, you look to your primary duty, if you have a salary, and the management test:

Do you?

• Spend most of your working hours performing managerial tasks, such as hiring, scheduling work hours, directing work, maintaining supervision records, handling grievances and discipline, budgeting?
• Regularly supervise at least two full-time employees and have genuine authority (or significant input) to hire, fire, promote, or discipline staff?
• Receive a salary?
• Make independent decisions, or have significant input into hiring, firing, or disciplining co-workers?

The short answer is legally, no you cannot be fired or discriminated against for but in reality it happens. However, when you complain to management about being shorted overtime pay you feel was due, you are engaged in protected activity. I have had employment cases where the claim the employer lost on (i.e. had to pay money) was not the original discrimination claim, but rather the retaliation claim against the employer for complaining. So you can sue for a retaliation firing in many cases.

So, the FLSA protects informal, internal complaints, lawyer demand letters, lawsuits, etc. The best course of action is usually to have a lawyer make an overtime demand. Making improper threats, demeaning comments, vague accusations, etc. could be a separate cause for discipline and you could lose your overtime protection rights from retaliation. I have had employment cases where the claim the employer lost on (i.e. had to pay money) was not the original discrimination claim, but rather the retaliation claim against the employer for complaining.

If you are truly an independent contractor, then generally you are not entitled to overtime, but are you really an independent contractor? Many employers misclassify workers in a misguided attempt to cheat them out of overtime.

Some factors to consider and make it more likely you are entitled to overtime are:

• Having a strict work schedule set by the employer or do you work hours of your own choosing?
• Are there written agreements as to non-competition, work schedules, vacation time, etc.?
• Are you required to wear a company uniform?
• Are you required to work exclusively for the employer?
• Do you use your own tools and equipment to complete the job or your employers?

Most lawyers, including the lawyers at Lober & Dobson, LLC, will represent you on a contingency fee, meaning you will not owe us legal fees if we do not recover for you. Overtime cases generally use"one-way fee shifting," meaning if you win, your employer is legally required to pay your attorney’s fees and court costs in addition to your owed wages.

Liquidated Damages, which equal 100% of the unpaid wages owed (essentially doubling the amount you recover as a penalty to the employer).

Under federal ,you have 2-year statute of limitations for unpaid overtime claims from the date of the violation, which extends to 3 years if the employer's violation was willful.

You can file a collective action. Collective actions for overtime allow multiple employees who are "similarly situated" to join forces in a single lawsuit against an employer who has failed to pay required wages (like a class action). Under federal law, these wage theft or misclassification claims require affected workers to "opt-in" to the lawsuit to recover back pay. Often we start with one employee client and it evolves into a collective action. This is extremely helpful in pursuing wage theft claims as it adds pressure on the employer to resolve the case and do the right thing.

Hiring a lawyer is an important decision. Hiring a lawyer that is knowledgeable and experienced are important factors, well as hiring a lawyer that communicates with his clients, keeps you informed, and is well “likable”. At Lober & Dobson, our lawyers give our clients our cell phone numbers and communicate directly with clients, not through a wall of legal assistants and chatbots like some multi-state advertising firm.

We also have over 35 years of experience practicing laws. Michael J. Lober has represented employers and employees in numerous overtime cases. Having represented employers (both governmental and private employers), Mike has valuable insight in how labor views employment claims. We use that knowledge, our experience and our hands-on approach to maximize our clients’ recoveries.