Illegal Ways Your Employer May Try to Avoid Paying You Overtime

The Fair Labor Standards Act (FLSA) is the federal wage and hours law that covers overtime. The law requires that nonexempt employees must be paid “time and a half” (150%) for any hours over 40 worked in one standard work week. The law prohibits employers from averaging hours worked in a two-week period, even if the pay period is every two weeks. For example, if you work 48 hours in week 1 and 32 hours in week 2 (for a total of 80 hours in two weeks), you must still be paid overtime for the 8 additional hours you worked during the first week. In addition to the FLSA, states may also have laws which address overtime.

Often, employers try to avoid paying overtime to their employees in order to save their company money. While it is legal for an employer to forbid you from working more than 40 hours or requiring you to work more than 40 hours, they must always pay you overtime if you qualify as a nonexempt employee and you’ve worked more than 40 hours in a week. The following are some of the ways employers may illegally try to benefit from having you work overtime without paying you the appropriate wages.

Employers may force employees to “clock out” after a normal day’s work while ordering them to continue to work. By law, if an employer receives the benefit of an employee’s “extra work” the employer must pay the employee for that work. Even if an employer has a rule that no employee may work over 40 hours in a week and an employee works over 40 hours anyway, the employer still owes that employee overtime pay. Additionally, some employers even have employees sign contracts which state that they will not be paid overtime if they work more than 40 hours. These contracts do not supersede the law. The employees must still be paid overtime regardless of the contract.

Another way that employers may attempt to cheat an employee out of overtime is by misclassifying the employee. Some employees are “exempt” from receiving overtime pay. One of the categories of exempt individuals is independent contractors. However, even though an employer classifies someone as an independent contractor, the worker may actually legally fulfill the definition of a nonexempt employee, and thus be entitled to overtime pay. If an employer controls the time, place, and manner of the work, requires the worker to follow company work rules, and sets the hours that the worker must work, that worker is an employee rather than an independent contractor. As such, the worker is probably entitled to overtime wages.

Employers may also try to avoid paying overtime to an employee who receives a salary. Most executive, administrative, and professional employees (the typical “salaried” employees in a workplace) are exempt from receiving overtime pay. In order to be considered exempt, these employees must earn at least $455 per week, regardless of the number of actual hours worked. These employees typically have an advanced degree, supervise at least 2 fulltime employees, perform non-manual labor, have the authority to hire and fire employees, and must perform work that requires discretion and independent judgment. However, just because an employer pays you as a salaried employee doesn’t mean you are exempt from overtime. Your duties and salary must both fall under the exempt category in order for your employer to not pay you overtime.

Finally, an employer may also try to avoid paying overtime by requiring an employee to be “on call” or to otherwise perform work from home. If an employee is required to perform duties that restrict their free time (immediately answer and return phone calls, immediately respond to emails and texts, attend mandatory meetings or trainings after hours or on days off), this is considered work for which the employee is entitled to overtime pay.

If you believe your employer is utilizing illegal wage practices, such as failing to pay you overtime wages that you are rightfully entitled to, it is important to obtain the assistance of a skilled advocate to fight for your legal rights. Contact the Amsberry Law Firm today to learn how we can help!

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Written by Amsberry Law Firm

Amsberry Law Firm

Mr. Amsberry is board-certified in labor and employment law by the Texas Board of Legal Specialization. He is a proven litigator who has argued before the United States 5th Circuit Court of Appeals and earned favorable outcomes in complex, precedent-setting employment and civil rights cases. He served as a reservist assistant judge advocate general in the U.S. Army and is a sought-after lecturer and speaker on a range of legal issues.

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