The overtime attorneys at Lyons, Snyder & Collin are frequently asked employment and overtime related questions. As such, we have compiled a “cheat sheet” as a courtesy to our clients. You will see that employers many times (willfully) incorrectly advise their employees as to their overtime and minimum wage rights in an effort to circumvent the Fair Labor Standards Act. As always, please feel free to contact us at 954.462.8035 for a free consultation or to answer any additional questions you may have.
Q: Am I an exempt or non-exempt employee? My employer says because I am an exempt employee, I am not entitled to overtime?
A: Unless exempt, employees covered by the Fair Labor Standards Act must receive overtime pay for hours worked over 40 in a workweek at a rate not less than time and one-half (1.5x) their regular rates of pay.
Employers routinely misclassify employees as “exempt” in an improper attempt to circumvent the overtime requirement. For the most part, anyone paid on an hourly basis and having to record time in / time out are “non-exempt”. “Executive,” “administrative,” and “professional” employees, typically paid a set amount regardless of the amount of time worked are exempt. An employer cannot arbitrarily designate an employee as “exempt” or label them an “executive” or “manager”. Exempt status is based on compensation levels and job duties – not made-up job titles. If you believe your employer may be improperly classifying you as “exempt”, please call one of our experienced employment attorneys for a free consultation.
Q: My employer says I am a “manager” and therefore exempt from overtime. I do not “manage” anything, however. Why I am exempt?
A: Some employers incorrectly make the mistake of assuming that simply because an employee is paid a salary, or is called “manager”, the employee will be considered exempt from receiving addition compensation for overtime pay worked. Many non-exempt employees are paid a salary, such as a receptionist, secretary, clerk, or assistant. Oftentimes an employee’s (arbitrary) job title (such as “manager”) carries no weight at all when determining whether an employee is owed overtime. The employee’s actual job duties and not a fictitious title is the determining factor when accounting for overtime. Common sense dictates that a manager must manage – a director must direct. An employer cannot circumvent the Fair Labor Standards Act by simply (mis)labeling all of their employees as “non-exempt”.
Q: Does my employer need to maintain my time records? My employer says because I didn’t keep accurate time records I am not entitled to overtime?
A: The employer, not the employee, is required to maintain accurate time records. Every covered employer must keep certain records for each non-exempt employee. The Fair Labor Standards act requires no particular form for the records, but does require that the records include certain identifying information about the employee and data about the hours worked and the wages earned. The law requires this information to be accurate.
If an employee files a wage claim for unpaid overtime, and the employer has no time records to dispute the employee’s own records showing that overtime was worked, the Court will accept the employee’s records as valid, unless there is a good reason to doubt the credibility of such records (rebuttable presumption in favor of the employee). The employer has almost no defense if they cannot provide accurate time records.
Q: My employer says that because I am paid a salary, I am ineligible for overtime?
A: The fact that you are considered as a “salaried” employee has no bearing on whether you are entitled to overtime pay. Your salary simply means you receive the same amount of money each month or week. You are eligible for overtime if you are a non-exempt employee regardless of whether you are paid a salary.
Q: My employer says that due to the size of our company, I am not entitled to overtime?
A: Some employers incorrectly assume that because their business is small, they are not covered under the Fair Labor Standards Act. The Fair Labor Standards Act covers individual employees whose work affects “Interstate Commerce”. The term “Interstate Commerce” is extremely broad, however. In all likelihood, you are employed by a business covered under the Fair Labor Standards Act, and as such, are eligible for overtime benefits if you are a non-exempt employee.
Q: My employer says I am only eligible for “straight-time” and not overtime.
A: A non-exempt employee who works in excess of 40 hour in a given workweek should be paid overtime (1.5x their hourly rate) for any hours worked in excess of 40 hours and not their normal “straight-time” hourly rate.
Q: My employer asked me if I can “volunteer” a few extra hours a week. Can they do that?
There is no such thing as “voluntary unpaid overtime” under the Fair Labor Standards Act. The Fair Labor Standards Act mandates that employees who work in excess of 40 hours per week must be compensated at a rate of 1.5x their hourly rate. An employer should not ask an employee to work “off the clock”. Additionally, an employee cannot waive the right to receive (at least) minimum wage and applicable overtime pay for all hours work. Better yet, as an employee cannot waive this right – any such agreements are completely unenforceable, even if you have agreed in the past or accepted cash.
Q: My employer said he will give me “comp time” instead of overtime. Is that legal?
A: Notwithstanding government employees, an employer cannot pay their employees in “comp time” (or compensatory time) – an hour off at some later date for every extra hour worked – instead of paying overtime. “Comp time” is a tool employers use to circumvent the Fair Labor Standards Act.
Q: My employer will not pay me overtime because he classified my job title as an “Independent Contractor” or “1099 worker”. Is this true and am I an “Independent Contractor / 1099 worker”?
A: Some employers incorrectly define an employee as an “Independent Contractor” in an attempt to deny overtime payments. Although “Independent Contractors” are not entitled to overtime pay, many employees characterized as “Independent Contractors” are actually non-exempt employees. Simply because an employee is “titled” as an “Independent Contractor means very little – the employee’s job description (and underlying nature of the relationship) is the determining factor in deciding whether an employee is owed overtime. Many times, employers incorrectly classify temporary workers during rush periods or “busy seasons” as “Independent Contractors”. Regardless of the length of employment, in most cases, an individual is considered an employee (eligible for overtime) and not an independent contractor, if:
- The employer dictates how, when and where the individual performs their work
- The employer provides training
- The employer provides tools and equipment necessary for the job (office, computer, cell phone, etc.)
- The employer requires the individual to work at the employer’s workplace or another designated location
- The employer pays the individual by the hour, rather than by the job or project
- The employer requires the individual to provide reports of their work progress to a supervisor
Of note, an employee cannot “opt-out” or “contract-out” of being a non-exempt employee – Courts rarely recognize a person working solely for one business to be an independent contractor, even when there’s a written contract stating otherwise. A non-exempt employee is always eligible for overtime regardless if he/she is listed as an “Independent Contractor”. Additionally, “Independent Contractors” typically work for numerous companies and supervise their own work.
Q: I am so busy I work through lunch. Should I be compensated with overtime?
A: An employee should be compensated for time spent working during lunch. Non-exempt employees who work more than 40 hours per week (including time spent working during lunch) should be paid overtime.
Q: My employer averages my hours over multiple weeks. Some weeks I work 50 hours and am not given overtime. Is this legal?
A: Generally, an employer is not allowed to average your work hours between two weeks when determining overtime pay. If you are working 50 hours one week and 30 hours the following week, you are entitled to overtime pay for the first week (10 hours of overtime at 1.5 your hourly rate) if you are a non-exempt employee.
Q: My employer pays me off the books. Can I still claim back overtime pay?
A: Yes. If an employer pays an employee in cash, which is not recorded, the employer may very likely owe the employee overtime pay. Employers are required to record its employee’s hours, period. An employer has no defense in Court if they cannot show (by accurate records) how/when their employees were paid (rebuttable presumption in favor of the employee’s records). An employee can claim back overtime pay even if the employee previously accepted cash payments or agreed to “straight-time”.
Q: My employer told me he only has to be the Federal Minimum Wage amount and not Florida’s Minimum Wage amount? Is this accurate?
A: The Fair Labor Standards Act requires that employees receive at least the minimum wage of $7.25 per hour. In January 2012, Florida’s minimum wage rose to $7.67 per hour. Because federal law requires employers to pay the higher minimum wage (either federal or state), Florida employers must pay their workers at least $7.67 per hour. Please note, exception to the minimum wage law include employees who receive tips and young workers.
Q: My employer says that the overtime claims are impossible to win and that I would be foolish to hire an attorney? Is he correct?
A: Absolutely not. Overtime lawyers oftentimes obtain judgments on behalf of employees simply because employers fail to properly and accurately maintain wage and hour records. Without these records, it is almost impossible for the employer to dispute what hours the employee worked. If an employer fails to pay overtime to a non-exempt employee working over 40 hours per week, the employee may receive damages equal to 2x the unpaid overtime and pre-judgment interest. Additionally, the employer is responsible for paying all of the employee’s attorney’s fees and costs. The attorney’s fee provision encourages employees to settle claims – especially as they are personally liable.
Q: My employer refuses to pay me overtime because I didn’t “ask for approval?” Is he correct?
A: No. Hours spent working in excess of 40 hours per week should be compensated as overtime, regardless of whether the employee asked for approval.
Q: Is extra pay required for weekend or night work?
A: Extra pay for working weekends or nights is a matter of agreement between the employer and the employee (or the employee’s representative). The Fair Labor Standards Act (FLSA) does not require extra pay for weekend or night work. However, the FLSA does require that covered, nonexempt workers be paid not less than time and one-half the employee’s regular rate for time worked over 40 hours in a workweek.
Q: Is there any limits on the number of hours I can work to receive overtime? I am 17 years old?
A: There is no limit in the Fair Labor Standards Act on the number of hours employees aged 16 and older may work in any workweek. The Fair Labor Standards Act does not require overtime pay for work on Saturdays, Sundays, holidays, unless overtime is worked on such days, however.
Q: What is the statute of limitations on how much “Back Pay” I can receive for my employer’s failure to pay overtime?
A: Under the Fair Labor Standards Act, an employee is entitled to recover lost wages from the present time back to no more than two years before a lawsuit was filed, unless the employer either knew, or showed reckless disregard for the matter of whether its conduct was prohibited by the Fair Labor Standards Act. If the employer knew, or showed reckless disregard for the matter of whether its conduct was prohibited by the Fair Labor Standards Act, the employee may be entitled to recover lost wages from the present time back to no more than three years before a lawsuit was filed.
Florida residents have a longer stature of limitations. Under Florida law, an employee is entitled to recover lost wages from the present time back no more than four years, unless the employer either knew, or showed reckless disregard for the matter. If the employer either knew, or showed reckless disregard for the matter, an employee is entitled to recover lost wages from the present time back to no more than five years before a lawsuit was filed.
Q: My employer laughed at me when I said I would be filing a claim for back overtime pay. My employer said the business would declare bankruptcy before paying me anything and that he was not personally liable? Is my employer correct?
A: Under the Fair Labors Standards Act, every “employer” must pay a minimum wage and any “employer” that violates the Fair Labor Standards Act is liable to the employee for minimum wage and/or overtime wages, plus liquidated damages. Individual defendants could be held PERSONALLY LIABLE for overtime claim; this includes CEOs or COOs of a company.
Additionally, the personal liability for unpaid wages and overtime compensation under the Fair Labor Standards Act can be imposed upon INDIVIDUAL CORPORATE MANAGERS who exercise control over the employment relationship, even though the corporation filed for bankruptcy protection. Control includes “decisions of significance”, including setting wages. Individual managers could be “employers” under the Fair Labor Standards Act definition, and therefore any manager who falls under the definition could be liable to employees for minimum wage and /or overtime wages in addition to liquidated damages and attorney’s fees.
Q: I work as a server at a restaurant. My boss says I’m only entitled to “tips” and not minimum wage or overtime. Is my boss correct?
A: Restaurant servers and waiters are frequently employed as tipped employees. This means that employers (in Florida) will pay servers and waiters $4.65 an hour and apply the tips that they received as a tip credits against the minimum wage. Under the Fair Labor Standards Act, tipped employees must receive at least the minimum wage. Florida’s minimum wage is currently at $7.67 per hour.
However, since part of the income received by the waiter or server income is in the form of tips, those tips may be counted by employers toward the minimum wage paid to the employee. The employer can then take a “tip credit” against the minimum wage, and only pay a minimum cash wage; usually this is $3.02 an hour. However, if the employee does not receive enough in tips so that his total wage is the minimum wage, then the employer must make up the difference. Stated another way, the employer is responsible to ensure the employee earns at least $7.67 per hour regardless of how much or how little he receives in tips. For example, if a waiter averages $2.00 per hour in tips and gets paid $4.65 an hour, then the employer (restaurant) will have to pay that worker the $1.01 per hour needed to bring the hour wage to $7.67 an hour.
Q: Are tips the property of the employer or employee? My employer keeps a percentage of the tips. Is that legal?
A: Tips are the property of the employee. The employer is prohibited from using an employee’s tips for any reason other than as a credit against its minimum wage obligation to the employee (“tip credit”) or in furtherance of a valid tip pool. Valid tip pools (sharing arraignments) among employees who customarily and regularly receive tips, such as waiters, waitresses, bellhops, counter personnel (who serve customers), bussers, and service bartenders are permitted. A valid tip pool may not include employees who do not customarily and regularly received tips, such as dishwashers, cooks, chefs, and janitors, however.
The employer must provide the following information to a tipped employee before the employer may use the tip credit:
1) The amount of cash wage the employer is paying a tipped employee, which must be at least $4.65 per hour;
2) The additional amount claimed by the employer as a tip credit, which cannot exceed $3.02 (the difference between the minimum required cash wage of $4.65 and the current minimum wage of $7.67);
3) That the tip credit claimed by the employer cannot exceed the amount of tips actually received by the tipped employee;
4) That all tips received by the tipped employee are to be retained by the employee except for a valid tip pooling arrangement limited to employees who customarily and regularly receive tips; and
5) That the tip credit will not apply to any tipped employee unless the employee has been informed of these tip credit provisions.
The employer may provide oral or written notice to its tipped employees informing them of items 1-5 above. An employer who fails to provide the required information cannot use the tip credit provisions and therefore must pay the tipped employee at least $7.67 per hour in wages and allow the tipped employee to keep all tips received.
Q: I work as a server at a restaurant. My boss will not pay me any tips obtained on a credit card because he says the credit card fees are too high. I should be entitled my tips minus any credit card fees, correct?
A: Where tips are charged on a credit card and the employer must pay the credit card company a percentage on each sale, the employer may pay the employee the tip, less that percentage. For example, where a credit card company charges an employer 3 percent on all sales charged to its credit service, the employer may pay the tipped employee 97 percent of the tips without violating the Fair Labor Standards Act. However, this charge on the tip may not reduce the employee’s wage below the required minimum wage. The amount due the employee must be paid no later than the regular pay day and may not be held while the employer is awaiting reimbursement from the credit card company.
Q: I work as a server at a restaurant. Who pays for deductions, walk-out, breakages, or cash register shortages?
A: Where deductions for walk-outs, breakage, or cash register shortages reduce the employee’s wages below the minimum wage, such deductions are illegal.
Q: I work as a server at a restaurant. My boss says I’m not entitled to overtime because I am paid in tips. Is my boss correct?
Waiters and servers (i.e. tipped employees) who work over 40 hours a week are entitled to overtime pay under the Fair Labors Standards Act. The FLSA makes no distinction between tipped employees and other non-exempted employees. Additionally, overtime is calculated on the full minimum wage of $7.67. A seemingly large number of employers and employees in the restaurant business industry are unaware of this o