What is considered overtime?
As Americans, we pride ourselves on our work. We give a full day, and expect to be paid for our work. If you work more than 40 hours per week, or are forced to accept possible questionable pay practices such as tip pooling with managers, unpaid on call time, and getting comp time rather than cash, federal laws and state laws protect you from the employer requiring illegal work from you. Paying overtime is not a choice your employer has. Even if you work on a salaried basis, you may legally be entitled to overtime. Even the fact that you are a salaried employee is not what determines whether your employer can deny paying you overtime. Even if you are salaried or your employer considers you an independent contractor, federal law may see it differently. Unless you are an exempt employee – something that is to be determined by a federal law test – you are entitled to receive 1.5 times your effective rate. See more on this below.
What are some of the illegal deductions from your paycheck?
Federal law protects employees from the pay abuses of unscrupulous employers. Not paying overtime or withholding money from our check is on the same plane as an employer stealing money from its employees. Some common overtime violations include:
- Paying straight time for overtime.
- Not paying overtime to certain salaried employees who are entitled to overtime.
- Hiring you as an “independent contractor,” “contract employee,” or “contingent worker” and not paying you overtime or benefits like regular employees.
- Legal professionals at law firms not getting paid overtime.
- API Inspectors / Offshore Inspectors not getting paid overtime.
- Illegal tip pooling – Having managers or bar tenders share in tips.
- Comp hours rather than cash. The overtime law requires employers to look at work on a weekly basis, not a two week period.
- Not paying you for training, filling in forms or other duties required for your job.
- Not getting paid for “sales hours.” Working sales along with other duties, but getting paid only commissions, or not getting paid for other duties.
- Your boss requires you to “finish up off the clock.”
- “On call” time without being paid for it.
- Mysterious deductions for expenses or lunches not taken.
- Paying salary and no overtime when you spend less than 50% of your time managing other employees.
- Paying salary and no overtime with a title like assistant manager, assistant branch manager, or working lead.
Although every situation requires analysis as to whether an employee is exempt or not exempt from federal requirement to receive overtime, unless your position is exempt under federal law – and not because your employer says so – you may qualify for unpaid overtime. Call us to discuss your situation.
How should you calculate overtime?
Under the Fair Labor Standards Act hourly employees are entitled to overtime pay when they work more than 40 hours in a week. Employers violating the Fair Labor Standards Act may implement comp time schemes by telling the employee to only work 20 hours one week because the previous week the employee worked 60 hours and then the company will report 40 hours for each week. Although the employee is working the same amount of hours (80 total in two weeks), this is nevertheless a violation of the Fair Labor Standards Act and Texas overtime regulations. Employers cannot average hours over two or more weeks. Likewise, your employer cannot get you to agree not to follow the overtime rules.
What are some employer excuses for not paying overtime?
The overtime lawyers of The Vethan Law Firm, P.C. are experienced in going after unscrupulous employers for denying overtime claims. These employers may use various excuses to avoid paying overtime. But an excuse is just that – an excuse. It does not give a bad employer the right to refuse paying you what you are owed by law.
Bogus Excuses for Not Paying Overtime:
- 1. You are on Salary, so you don’t qualify for overtime.
- 2. You are an independent contractor. We don’t have to pay you overtime.
- 3. If you worked over 40 hours this week, you can work fewer hours next week.
- 4. Waiting time is not working time.
- 5. “On call” time is not working time.
- 6. You are not entitled to overtime if you are given time off.
- 7. Employers requiring you to work off the clock.
Your employer cannot change federal overtime laws, cannot avoid paying overtime by enacting an illegal no-overtime policy or by getting you to agree to a questionable “special deal.”
Are you really a “contractor?”
Contract employees or independent contractors include self-employed workers who are not covered by the tax and wage laws that apply to regular employees. Employers do not pay Social Security, Medicare, or federal unemployment insurance taxes on contract employees or independent contractors. Thus, employers are strongly motivated to classify workers into this category to save costs. But employers may illegally classify an employee as a contractor, thus violating federal law.
Whether you are an employee or contractor is generally based on the following inquiry:
- 1. Control: Does the employer control what you do, how you perform your duties, and dictate when you are required to be at the job site?
- 2. Financial: Do you or the employer set the business aspects of your work (method of payment – project based, hourly, etc. and reimbursement of expenses)?
- 3. Relationship: Do you receive employee-type benefits, such as a pension plan, insurance, or vacation pay? How long have you been at the employer?
If you answered yes to one or more of the questions above, you may be an employee rather than an independent contractor, and may be missing out on valuable overtime wages and employee benefits.
Why choose the Vethan Law Firm, P.C.?
With offices in Texas and California, our overtime lawyers are part of a firm that has received the prestigious AV Preeminent Rating, the highest rating awarded by Martindale Hubbell, an independent rating agency for attorneys throughout the United States.
The attorneys at the Vethan Law Firm, P.C. (VLF) also work with individual and business consumers to represent them in disputes involving deceptive trade practices and consumer protection matters and breaches of contract claims.
These lawsuits typically may involve:
- Purchases of Products or Services Based on Misrepresentations
- Deceptive or fraudulent conduct in a sales transaction
- Sale of goods transactions
- Breach of contract for the purchase / sale of products
- Breach of contract regarding real estate
- Breach of contract for services
All of our attorneys are committed to protecting your rights and interests. Charles Vethan, our managing shareholder is Board Certified by the Texas Board of Legal Specialization in Consumer and Commercial Law. Call us to see if we can assist you. We pride ourselves on our knowledge and outstanding customer service.