Practices
Unpaid Overtime
Almost all hourly employees and many salaried employees are entitled to overtime pay. Some employers intentionally choose not to pay overtime wages. Other employers fail to pay overtime because they do not understand the law. Regardless, if you worked more than forty hours in a work week, you may be entitled to recover your unpaid overtime plus penalties, interest, and attorneys’ fees.
The Fair Labor Standards Act (FLSA) requires that most employees in the United States be paid at least the federal minimum wage for all hours worked and overtime pay at least equal to time and one-half the regular rate of pay for all hours worked over 40 hours in a work week.
The Johnson Firm handles the following types of unpaid overtime and wage claims:
• Failure to pay minimum wage
• Unpaid salary
• Underpaid overtime
• Unpaid Wages
• Unpaid overtime
• Failure to pay overtime wages
• Exemptions from overtime wages
• Mischaracterizing employees as exempt
• Salaried workers entitled to overtime pay
• Misclassified managerial employees (supervisors, assistant managers or managers)
• Misclassified professional employees
The New Overtime Law
Under the new overtime law issued in August 2004, employees who earn under $23,660.00 per year are automatically entitled to overtime pay. In contrast, highly-paid employees who earn at least $100,000.00 per year and regularly perform one or more exempt duties are not eligible for overtime pay. Those employees who earn between $23,660.00 and $100,000.00 are most often subject to misclassification and lost overtime wages.
Employers regularly violate the Fair Labor Standards Act in various manners including:
1. Misclassifying Salaried Employees
Just because an employee earns a salary does not mean the employee is not entitled to also be paid overtime. Only a few types of employees are not entitled to overtime. This depends on several things such as whether the employee is supervising other employees, is an outside salesperson, has a professional license or degree, and is making significant decisions that substantially affect the business. Otherwise, the employee is likely entitled to overtime pay, even if that employee is salaried. Employers often fail to pay employees overtime for time employees spend changing into uniforms, recording their time, or for automatic time clock systems that don’t work properly. Some examples of common jobs that employers misclassify as not entitled to overtime include computer/IT employees, call center employees, independent contractors, assistant managers/shift supervisors, field service technicians/engineers/repairmen, cable installers, drivers, recruiters, consultants, retail store employees, computer programmers, MIS help desk workers, assistant managers, managers, inside salespersons, stock broker, broker assistant, or financial advisor and loan officers/loan consultants/loan processors.
2. Providing Comp Time Instead of Overtime
If your employer is giving you comp time instead of paying you overtime, they are breaking the law. While legislation has been suggested to permit workers to receive comp time instead of overtime pay for overtime hours worked, this is not the law. Many employers assume it is and give their employees comp time instead of the overtime pay they are entitled to. This is illegal!
3. Working Off the Clock
Employers often assign employees more work than can be done in forty hours. The employee often stays late without being paid or takes the work home. If your employer is aware of this, you are entitled to overtime.
4. Rework
When an employee must correct mistakes in his or her work, the time must be treated as hours worked. The correction of errors, or "rework", is hours worked, even when the employee voluntarily does the rework.
5. Waiting for Work
Time that an employee is required to be at work or allowed to work for his or her employer is hours worked. A person hired to do nothing or to do nothing but wait for something to do or something to happen is still working. The Supreme Court has stated that employees subject to the FLSA must be paid for all the time spent in "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer of his business."
6. Overtime Regardless of Place of Work
Hours worked include all the time during which an employee is required or allowed to perform work for an employer, regardless of where the work is done, whether on the employer’s premises, at a designated work place, at home or at some other location.
7. Volunteer Overtime
It is the duty of management to exercise control and see that work is not performed if the employer does not want it to be performed. An employer cannot sit back and accept the benefits of an employee’s work without considering the time spent to be hours worked. Merely making a rule against such work is not enough. The employer has the power to enforce the rule and must make every effort to do so. Employees generally may not volunteer to perform work without the employer having to count the time as hours worked.
Recognizing Common Overtime Pay Violations
There are several signs you should watch out for that may indicate your employer failed to pay you overtime wages. While one way is when your employer classifies you as salaried by giving you a title such as supervisor or assistant manager, some other signs that you are owed unpaid overtime wages for your past work are as follows:
1. Your employer recently reclassified your overtime status. You're now eligible for overtime pay, but your job duties didn't change.
Your employer clearly realized their mistake but is trying not to pay you all the past overtime you are due. Your employer probably reclassified your overtime status because you were previously misclassified. You may be entitled to unpaid overtime wages for as much as a three-year period before your reclassification. Also, your overtime reclassification may amount to an admission that your employer previously misclassified your overtime status.
2. Your boss tells you are not entitled to overtime pay because you are salaried.
Many employers, especially smaller employers, mistakenly believe that employees are not entitled to Texas overtime pay if an employee is paid a salary. Merely paying an employee a salary does not deprive the employee of the right to overtime pay. Under Texas overtime law, an employee must be paid on a salary basis and perform duties satisfying one of the narrowly recognized FLSA overtime exemptions (e.g. executive officer, certain administrative, certain professional, certain outside sales, etc.) to be ineligible for overtime pay. Otherwise, you are due overtime pay in Texas.
3. You work “off the clock.”
Working "off-the-clock" includes being asked to perform work before clocking-in, during lunch breaks, and after clocking-out. Some employers require workers to clock out to finish their work. If you are told you can't leave until you finish your work but the company is not paying for any additional time or that you should have completed your work during your shift, you are likely entitled to overtime pay in Texas. This can include work employees perform at home. Under federal and Texas overtime law, employees are entitled to wages for all hours worked, regardless of where they are worked.
4. You are not paid overtime pay because it was not pre-approved.
Some employers refuse to pay overtime unless the overtime is pre-approved. Usually a manager is not available to pre-approve the overtime request. Texas overtime law requires the employer pay overtime wages for all hours over 40 hours worked in a workweek regardless of whether prior approval is obtained.
5. Your employer does not pay you at least time-and-a-half for hours you work over 40 hours in a work week.
Texas employees are entitled to overtime pay of at least time-and-a-half an employee's regular rate of pay. Some employers only pay straight time for hours employees work over 40 hours. That is illegal. Federal and Texas overtime law requires the employer pay at least time and one-half.
6. Your employer fails to pay you for all the hours you work.
Under federal and Texas overtime law, "work" includes any labor benefiting an employer and may include work at home; work "off the clock;" work performed during lunch periods; prep work before or after a shift such as donning and doffing safety equipment; and attendance at mandatory work-related training. If your employer failed to pay you wages for this time, you may be entitled to a recovery of unpaid overtime.
You Have Limited Time to Recover Your Unpaid Overtime
Federal and Texas overtime law imposes strict time limits on recovering overtime wages. This means that the longer an employee waits before filing an overtime lawsuit, the less money they may be entitled to recover. In most cases, an employee may recover up to two years of unpaid overtime if suit is filed promptly. In certain cases an employee may recover up to three years of overtime pay if suit is filed promptly.
Unpaid overtime lawsuits have been successfully filed against AT & T, Racetrac, Wal-Mart, Radio Shack, Starbucks and countless other companies trying to make profits by not paying overtime. Greedy corporations have been found guilty of bilking employees out of their pay for working overtime. They force employees to remain on the job after clocking out, intimidate workers who ask for overtime pay, and fail to follow the new overtime regulations set by the government. If your employer has done this to you, call the overtime lawyers at The Johnson Firm today to get the unpaid overtime that you are due.
Stockbroker or Financial Advisor
AG Edwards, Edward Jones, and Merrill Lynch have recently come under fire from attorneys that claim these brokerage firms willfully misclassified employees in order to deny them overtime compensation based on federal and state law. These companies usually pay their stockbrokers, financial advisors, and sales assistants on a commission basis even though they must regularly work long hours to properly perform their jobs.
The Fair Labor Standards Act states that an employee who falls under the professional, executive, or administrative category must be paid a base rate of $455 dollars a week and pass the “salary test requirement,” otherwise they are eligible for overtime compensation. A few salespeople do not qualify for overtime compensation under the law but most do. Some unscrupulous brokerage firms classify non-exempt people into these exempt categories to avoid paying them tens of thousands of dollars of overtime pay.
If employers fail to provide this compensation or classify employees into categories that do not properly suit their profession, the employer can be held legally responsible for any overtime pay withheld. In recent years, plaintiffs in stockbroker and sales assistant overtime pay lawsuits have recovered hundreds of millions of dollars in lost wages and damages.
If you are a stock broker, broker assistant, or financial advisor for AG Edwards, Edward Jones or Merrill Lynch and you believe you have had your wages unjustly withheld, you may be able take legal action against your employer. You may be entitled to thousands of dollars in back pay for unpaid overtime wages. Contact The Johnson Firm to talk to a lawyer familiar with stockbroker unpaid overtime claims today.