12555 Orange Drive
Suite 233
Davie, FL 33330
12555 Orange Drive
Suite 233
Davie, FL 33330
Is it unlawful to not pay overtime after 40 hours? Can my job do this legally? Generally, the Fair Labor Standards Act (FLSA) demands employers pay overtime to workers who clock more than 40 hours per regular work week.
To win an overtime claim, a worker must prove that (1) they are employed by the defendant and (2) the defendant failed to pay overtime wages.
A worker’s regular rate is the keystone of the overtime law. Because a worker’s overtime rate must equal at least one-and-a-half times their regular rate, a worker’s overtime rate depends on their regular rate; properly determining that rate is, therefore, of prime importance.
A worker’s regular rate refers to the hourly rate paid to the worker for the normal, non-overtime workweek for which they are employed. The regular rate is a worker’s total weekly non-overtime wages divided by their total non-overtime hours. To determine the worker’s overtime rate, a worker’s regular rate is not a baseless amount chosen by the parties; it is an actual fact.
For example, if a worker’s weekly salary is $1,000 for 40 work hours, their regular pay rate is $25/hour ($1,000 divided by 40). So, if the worker puts in 5 hours of overtime (45 total hours), the worker would be entitled to their base rate of pay of $1,000 + overtime pay at 1.5 times their regular rate of $25/hour or $37.50/hour x 5 hours = $187.50, for a total income of $1,847.50. Make sense?
A worker is not stripped of an overtime case because they underreported their time if knowledge of the underreporting is taken into account by the employer. Understanding may be traced to the employer when its supervisors or managers encourage low reporting.
As long as the minimum hourly rates are kept, the employer and worker can form the regular rate at any time and in any manner they see fit. Employers do not have the right to compute a worker’s regular rate in a wholly unrealistic and bogus manner to avoid the overtime law.
How do companies get away with not paying overtime? One of the most common ways employers get away with not paying overtime is by claiming the employee is exempt. The most frequent exemptions are the administrative, professional, and executive exemptions.
The employer must prove the FLSA exemption from overtime compensation applies, not the worker. This means the employer bears the responsibility of proving that a worker is exempt from overtime payments, not the other way around. A defendant employer must prove the applicability of an overtime exemption by clear and affirmative evidence. Also, exemptions are construed narrowly against the employer who asserts them. This is good news for workers.
For the administrative exemption to apply, an employer must show that a worker’s “primary duty” was the performance of office work connected to the employer’s management or business operations and that it included the exercise of authority and judgment. Both requirements must be met. Otherwise, the exemption does not apply, and the worker must be paid overtime.
To meet the first requirement that a worker’s primary duty relates to the management or business operations of the employer, the worker must perform work directly related to helping with the running or servicing of the business, as opposed to, for example, from working on a production line or selling products in a retail or service establishment.
To meet the second requirement, the test is whether the employee’s primary duties involve using their discretion and judgment regarding essential matters. Courts must determine whether the worker’s job consists of comparing and evaluating possible courses of conduct and acting or deciding after considering the various possibilities. The ultimate question is whether the worker can choose without immediate direction or supervision.
Although there is no requirement that the worker operates free from oversight, the worker’s duties must comprise more than the use of skill in applying established techniques, procedures, or specific standards described in manuals or other sources. A worker need not have limitless discretion or a tool lack of supervision to qualify as an “administrative employee” under the FLSA’s administrative exemption from overtime pay requirement.
What are exempt professional duties? Which job requirements apply to the learned professional exemption?
To qualify for the professional exemption, the worker’s dominate duty must be work requiring advanced knowledge, predominately intellection in character, and the regular use of control and judgment. Advanced knowledge must be acquired in a discipline of science or learning.
Fields of science or learning include law, medicine, accounting, engineering, architecture, teaching, and various physical, chemical, and biological sciences, pharmacy, etc. For example, suppose you work as a teacher at an elementary school. In that case, you are exempt from overtime pay as a learned professional.
Like the other exemptions, the employer must provide more likely than not that it is entitled to the benefit of a professional exemption under the FLSA, not the worker.
Before a particular position can qualify as one that climbs to the level of professional exemption under the Fair Labor Standards Act, the duties of that position must call for a person who is in the learned profession with at least a college degree in a specialized type of learning. A college degree of a generalized type does not meet that requirement. In other words, the determinative factor for a professional exemption from overtime pay under FLSA is the job requirement for a specialized degree and not education, in fact, acquired by the employee.
In one example, an adult probation officer’s position with the Florida Department of Corrections did not qualify for professional exemption from overtime pay under the FLSA, where the position did not require college or advanced degrees in any specialized field of knowledge.
In another example, an employee whose primary duty was developing and improving his employer’s computer network system function reliably fell under the computer professional exemption. The employee was involved in designing, developing, and analyzing a computer system or program related to user or system design specifications. The computer worker also applied systems analysis and techniques to advise users on determining hardware, software, or system functional specifications.
The central question regarding applying the FLSA’s executive exemption is whether the plaintiff’s primary duty was management. This means the employee’s principal, primary, central, or most crucial duty must be managing the business or managing a customarily recognized department. Determination of an employee’s prime duty must be taken into context, emphasizing the employee’s job as a whole.
In applying the FLSA’s executive exemption, how an employee spends his/her time working is a question of fact (for a jury to decide). In contrast, whether the employee’s particular activities exclude him/her from the overtime benefits of the FLSA is a question of law (for a judge to decide).
In determining whether an employee is subject to the FLSA executive exemption, the amount or percentage of time spent by the employee on work claimed to be exempt is not the only factor.
For example, the person “in charge” of a store is generally considered to have management as a primary duty in the context of the FLSA’s executive exemption, even if that person spends more total time performing non-exempt duties and makes few significant decisions. Also, assistant managers are exempt from the FLSA’s overtime requirements as long as they perform some management tasks.
The employee must also direct the work of at least two (2) or more other full-time employees and have the authority to hire or fire, or at least the employee’s suggestions are given weight.
So, if an assistant manager of a store interviews and screens applications and management adheres to her hiring recommendations most of the time, this assistant manager would be found to have had the authority to hire other employees, as required for a manager to be exempt from the FLSA overtime requirements under the executive exemption.
The FLSA does not apply to independent contractors. So, if you are an independent contractor, you are not entitled to overtime pay in Florida. However, just because your employer classifies you as an independent contractor or pays you as a 1099 employee does not mean you are an independent contractor and are not entitled to overtime pay.
In other words, wearing an “independent contractor” label does not exempt a worker from the protection of the FLSA; that is, a worker may be an independent contractor under other laws or for purposes of contractual relationship yet still meet the meaning of an employee under the FLSA.
To determine whether an employee is a covered employee or an exempted independent contractor under the FLSA, courts examine the economic reality of the relationship between the employee and the employer and whether that relationship demonstrates dependence.
Whether an employee is an independent contractor for overtime is not governed by the label put on the relationship or the contract controlling that relationship. Instead, it focuses on whether the work done, in its essence, follows the usual path of an employee.
Under the FLSA, courts focus on whether an individual is in business for himself or depends upon finding employment in the business of others.
The first factor for determining whether a worker is an independent contractor or an employee under the FLSA considers the nature and degree of the alleged employer’s control regarding how the work will be performed. What matters here is whether the suspected employer exercises a significant level of control over the worker that he does not stand as a separate economic entity in business for himself, which requires examination of the nature and degree of the alleged employer’s control, not why the alleged employer exercises such control.
The second factor considers the worker’s opportunity for profit or loss depending on his managerial skill. The relevant question here is whether the worker’s opportunity for profit or loss depends more upon the employer’s provision of work orders and the worker’s technical skill and efficiency than his managerial skill.
The third factor considers the worker’s contribution in equipment or materials required for his job or his employment of workers. The critical question is how much the worker’s work-related expenditures detract from his economic dependence on the employer.
The fourth factor considers whether the service performed requires a particular skill. The relevant question is whether the worker depends on the employer to equip him with the skills necessary to perform his job.
The fifth factor considered the degree of permanency and duration of the working relationship. The critical question here is the regularity and length of the working relationship between worker and employer.
The final factor, whether a worker is an independent contractor or an employee under the FLSA, considers the degree to which the service provided is an integral part of the employer’s business. The relevant question here considers the proportion of the employer’s business performed by the worker and the degree of control over the worker.
The amount of control an employer exercises over a worker supports a determination that the worker is an employee within the meaning of the FLSA rather than an independent contractor.
For example, if an employer sets your work hours, supplies you with equipment and materials, establishes service rates, directs your work, and disciplines you for arriving late, supports a determination that the worker is an employee and thus owed overtime pay. This is especially true if the worker’s services are integral to the employer’s business.
I see this a lot in the exterminator and pool cleaning businesses. Employers want to pay these workers as independent contractors while maintaining complete control over them. If your employer is doing this, they could be violating the law by not paying you overtime for all hours worked over 40 in a week.
The general rule is that overtime be paid on the regular payday for the period in which such a workweek ends. Although the FLSA specifies no time for overtime, liquidated damages (double damages) may be available if the employer fails to pay overtime on the regular payment date.
When the correct amount of overtime pay can only be determined sometime after the regular pay period, the law will be satisfied if the employer pays the excess overtime pay as soon after the regular pay period as practicable. There is no requirement that overtime be paid weekly.
For example, an employer’s policy of paying its employees seven to eight days after the pay period ended without justification for the delay was not unreasonable or untimely and thus did not violate the FLSA.
Payment of overtime pay may not be postponed for a period longer than is reasonably necessary for the employer to calculate and prepare payment of the amount due, and in no event may payment be delayed beyond the next payday after such computation can be made.
In other words, the rule in Florida is that an employer must pay its employees within a reasonable time after the end of the pay period. Overtime becomes unpaid, and an employer is liable under the FLSA for liquid damages when they are unreasonably late during the relevant period.
The first thing you should do if you are owed overtime pay is request that you be paid in writing. This is considered protected activity, which means you cannot be fired for demanding that you be paid overtime, as long as your demand is made in good faith.
In your demand letter, you should clarify that you assert your right to overtime pay and provide proof that you are entitled to overtime. For example, you should include how many hours you worked and a calculation of your regular rate of pay. Remember, overtime pay is 1.5 times your regular rate. You may also be entitled to double damages, called liquidated damages, if you can prove your employee’s actions were not done in good faith and your employer does not have reasonable grounds to believe its actions were not clearly violating the overtime law.
If your employer still denies your pay after you send a written demand, you may sue for not paying overtime. You do not need to file a discrimination charge with the EEOC before filing an unpaid overtime claim under the FLSA. If you get to this point, I recommend you contact a qualified labor and employment lawyer to assist you in your case against your employer for unpaid overtime pay.
Under the Fair Labor Standards Act, double damages (i.e., liquidated damages) are mandatory if the employer cannot show “good faith.” In other words, an employer has a good faith defense to the award double damages if an employer convinces the judge that the act or omission was in good faith and that they had reasonable grounds for believing that their acts were not a violation of the overtime law.
What constitutes “good faith” and whether the employer had reasonable grounds for believing that its act was not a violation of the overtime law are mixed questions of fact and law. The test has both subjective and objective components, and to establish good faith, the employer must show that it had an honest intention to find out what the law requires and to act in accordance with it.
The issue of willfulness is a jury question for purposes of determining the appropriate limitations period in an overtime action.
Attorney Micah Longo is the founding member
and managing attorney of The Longo Firm. A
Pennsylvania native, Micah Longo...Read More