Overtime Claims

In general, if an employee works more than forty hours in a week, they are entitled to overtime compensation at one and a half times their normal hourly rate. When this compensation is denied to an employee, the employee may be entitled to receive their unpaid wages, liquidated damages, and their attorney's fees.

Because the Fair Labor Standards Act (FLSA) contains a number of exemptions to overtime compensation, employees and employers alike are often confused about who is entitled to overtime and who is not. It is not uncommon for employers to misclassify employees as exempt, when, in fact, the employees are entitled to overtime compensation. The most common exemptions are those for executive, administrative, and professional employees.

Common Overtime Violations

Misclassification

Under Ohio and Federal law, everyone is entitled to overtime pay (time and a half for any hours worked over 40 in a workweek) unless they are specifically exempted under the law. In other words, your employer does not need to pay you overtime only if you work in a certain kind of job or position. The most common exemptions are for those employees who work in "a bona fide executive, administrative, or professional capacity."

A common mistake in this area is not paying overtime to an employee based solely on their job title (like "assistant manager"). When it comes to overtime, the law is concerned with actual job responsibilities, not job titles. A person who just runs the cash register is entitled to overtime whether their title is "sales associate," "manager," or "president of micro-transactions."

Under Federal law, an employee who was misclassified is entitled to receive their unpaid overtime wages. They are also entitled to receive an equal amount as liquidated damages (plus attorney's fees).

Not Paying Overtime to Salaried Employees

Although this violation is part of misclassification, it is so common that it is worth specifically mentioning . One of the most enduring wage and hour myths is that if you are paid a salary, you are not entitled to overtime pay. This is not true.

Being paid a salary is usually a requirement in determining whether someone is exempt from overtime. But a salary MUST be combined with other factors (like job duties). If you are being paid a salary, look closely at your job responsibilities to see if they match examples of exempt work. If you are unsure whether you are exempt or non-exempt from overtime requirements, it is worth consulting with an attorney.

Misclassification is very common. Entire industries getting the requirements wrong and misclassifying workers is not unheard of.

Overtime work "not allowed"

Some employers have a policy that no employee is to work overtime. That policy is entirely legal. But it does not alleviate the employer from paying for overtime work if such work does occur.

In other words, if a non-exempt employee works 41 hours in a week, the employer must pay her at time and a half for that extra hour. The employer may not say that the employee broke the policy and therefore will not be paid.

Some employers tell their employees that it is "illegal" for them to stay clocked in for more than 40 hours. That is usually accompanied by a request to perform off-the-clock work so that the employee is not "illegally" clocked in. This is nothing more than another way to squeeze unpaid work out of employees. If you are asked to work, you should stay clocked in. The only illegal thing is your employer not paying you for all hours worked.

"Averaging weeks"

Sometimes, employers will try to avoid paying overtime for one week by having an employee work fewer hours in a later week. This is not proper; overtime is determined on a week-by-week basis. If you work more than 40 hours in one week, you are entitled to overtime pay for that week, even if you only work 3 hours the next week.

Note: As of January 1, 2015, I have joined Markovits, Stock & DeMarco as Of Counsel. I am still available to assist you with any minimum or overtime issues you may have. I have experience with class and collective actions to collect unpaid wages on behalf of employees. My direct number is 614-604-8759.