Can an Employer Adjust Your Hours to Avoid Overtime?

divorce estate planningTime and again, employees find themselves in the awkward situation of an employer’s needing them to work longer but not wanting to pay the overtime cost for the additional hours. If you’re a worker who has put in extra hours, you may want to know, can an employer adjust your hours to avoid paying overtime? The overtime mismanagement situation is common and problematic, especially given that the employee is often caught by surprise when the matter comes up, and the employer can exert a significant amount of pressure in the moment for compliance.

Does an Employer Have to Pay Overtime After 40 hours?

Overtime for wage employees is specifically addressed under the Fair Labor Standards Act (FLSA). The law requires that nonexempt employees must be paid “time and a half” (150%) for any hours over 40 worked in one standard workweek.

This first criteria needs to be understood, given some of the myths that exist. Unlike the general assumption that overtime starts after eight hours worked in a given day, the federal law focuses on total hours in a workweek. So, it’s quite possible for someone to work 11 hours on a Monday but on Friday work less (5 hours) and stay under 40 hours for the week. In this case, the employer has off-shifted the demand, but kept the employee the same overall. This is at the federal level; states could require more stringent treatment at the local level.

Can an Employer Adjust Your Hours to Avoid Overtime?

As noted above, adjustments can occur within a workweek. Shifting is not allowed outside of a given 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.

Do Employers Have to Pay Overtime?

In short, yes, employers have to pay overtime – under certain conditions. 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.

How Do Companies Get Away With Not Paying Overtime?

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.

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. However, just because an employer pays you as a salaried employee, this 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 (for example, to 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.

Is Not Paying Overtime Illegal?

If a company doesn’t require the work, there’s no obligation for the employer to pay overtime unless it was already part of a contracted time schedule, i.e., planned overtime. However, if it is required without the employee’s discretion, then the work becomes chargeable under the law. Not paying can result in penalties to the company, recovery of wages owed, recovery and penalties for withholding not applied for payroll taxes, interest for monies missing, and penalties for late corrected filings. In short, the punishment can be significant and costly when added up.

If you’re feeling you might be in one of the above situations or someone you know in your family is experiencing problems with unpaid overtime, then it’s time to talk to an employment lawyer. Give us a call today at (210) 354-2244.

Attorney Russell Amsberry

Attorney Russell J.G. Amsberry

Attorney Russell J.G. Amsberry founded the Amsberry Law Firm in 1995 with the goal of providing clients with exceptional, focused representation on their issues. His success as a legal advocate has been reflected in the numerous professional honors he has received, such as speaking engagements and inclusion in Scene in SA magazine’s listing of the best lawyers in San Antonio, a Distinguished rating from Martindale-Hubble, and an amazing rating from Avvo. [ Attorney Bio ]

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The Amsberry Law Firm, founded in 1995, has helped thousands of clients overcome their unique legal challenges.

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