Why Isn't My Employer Paying Overtime?

The Fair Labor Standards Act (FLSA) was enacted by President Franklin Roosevelt on June 25, 1938. It was passed shortly after the end of the Great Depression when wages were still low, sweatshops were abundant, and wage theft was common. The FLSA was designed to protect workers by setting a minimum wage, eradicating child labor, creating overtime pay standards, and restricting excessive hours. 

Furthermore, the FLSA was intended to create a living standard to ensure workers' health and well-being could be maintained. Companies that operated their business by creating substandard labor conditions were previously more competitive than companies that tried to do right by their employees, so the FLSA was enacted to curtail this unfair advantage. 

The FLSA dictates that covered nonexempt employees are required to receive overtime pay for hours worked over 40 per workweek. A workweek is defined as any fixed and regularly recurring period of 168 hours or seven consecutive 24-hour periods. Overtime pay is defined as a rate not less than one and one-half times the worker's regular wage. However, it's important to note that there is no requirement for employers to pay workers overtime for weekends, holidays, or regular days of rest unless the worker is working overtime on such days.

A nonexempt employee is any worker who is not exempt from the overtime terms of the FLSA and is accordingly entitled to overtime pay for hours worked over 40 in a workweek. Nonexempt employees are usually paid hourly wages instead of a fixed salary. Nonexempt workers are typically in blue-collar fields like construction, assembly line work, or maintenance. These workers almost always have a supervisor or manager over them. 

Exempt employees are usually categorized under the FLSA as being salaried rather than paid hourly. They also do not qualify to receive overtime pay or the minimum wage. These jobs are usually in the professional arena and are considered white collar. For example, many executive, administrative, and computer-related jobs are categorized as exempt.

Employers are legally obligated to pay nonexempt employees overtime even if the employee worked overtime hours without permission. Beyond the exempt status, which we've already outlined, a company does not have to pay independent contractors overtime because they are not considered employees. 

If an employer does not pay overtime to eligible employees, they can expect to pay significant fines from the state and the Department of Labor as well as civil penalties from a lawsuit. Furthermore, they can be held liable for the worker's attorney's fees since they were forced to seek legal counsel to remedy the situation.

Why does my employer not pay me overtime? Because they think they can get away with it is the usual answer to this, unfortunately. The first step is to contact Morgan & Morgan employment lawyers so we can determine if you're a nonexempt employee. If you do have nonexempt employee status, you are entitled to sue past and present employers who have stolen wages from you.

Typically you have a two-year statute of limitations to recover back pay unless your employer willfully violated the FLSA, then you have three years. Individuals can bring lawsuits, or if the problem is systemic, a class action lawsuit could be brought by many employees. 

One notable class action lawsuit was filed against Dollar General, a chain of retail stores that sells paper goods, cleaning supplies, and food items. The class action lawsuit alleged that Dollar General violated state and federal laws by installing policies that barred workers from getting regular and overtime wages due to them. Some of their tactics included using a time-clock rounding scheme which required their workers to round time to the nearest 15-minute increment, which resulted in underpayment. Additionally, workers were forced to clock in 7 minutes prior to their shift which, compounded with the rounding policy, resulted in the under-recording of actual time worked. Furthermore, they did not pay warehouse workers for the time it took to get in and out of required protective gear.

Even though there are stringent laws governing overtime pay, companies still use tactics to avoid paying overtime pay that is not just unethical but illegal. Here are some common ways employers cheat employees out of overtime pay.

Making employees work off the clock: Some jobs require boot-up time to get machines ready for the workday. Depending on what type of job it is, it could take five minutes every day to get a computer up and running and software launched, or an industrial machine might require warming up for 30 minutes. If you're required to perform duties to "get ready" for work before clocking in, this is wage theft. Another example is call centers. These workers are often required to take a call near the end of their shift but end up working an extra 20 minutes off the clock to get the customer's issue resolved.

Inside sales: There are two different classifications when working in a sales position: outside and inside sales. Outside sales reps are expected to be out in the public drumming up sales and are not entitled to overtime wages. Inside salespeople work at the employer's facility and handle inbound calls. Companies will try to avoid paying overtime to inside sales by sometimes incorrectly categorizing them as exempt.

Salary: The way FLSA works is that it is assumed all workers are entitled to overtime pay unless they meet the payment threshold of $684 per week or $35,568 per year. Companies aren't going to advertise to their salaried employees that don't meet that threshold and are entitled to overtime pay even though they are salaried employees. Unfortunately, most salaried employees are not aware of this.

Fake Job Titles: Store manager, assistant manager, and vice president may sound fancy, but if the employee doesn't actually have anyone they manage and are instead just doing hard labor day in and day out, the job title may just be a way for the employer to trick workers into thinking they are not entitled to overtime pay. 

Comp Time: Some employers have gotten creative with ways to avoid overtime pay, including coming up with illegal schemes that promise future time off for overtime hours worked instead of payment. If you are a nonexempt employee, you have the legal right to be paid for all hours worked, including overtime. 

Although the FLSA protects workers at the Federal level, some states have additional laws concerning overtime pay. In Alaska, California, and Nevada, nonexempt workers can expect to be paid overtime if they work more than eight hours a day. Colorado requires workers to be paid overtime if their day exceeds 12 hours. And Oregon requires overtime pay for individuals working more than 10 hours in a day if they are in a manufacturing job.

Asking the question, why does my employer not pay me overtime, is the first step to discovering if your employer is illegally scamming you. You have rights under the Fair Labor Standards Act, and our overtime rights attorneys are here to help you determine if your rights are being trampled. Your time to file a claim could be running out, so now is the time to act. Contact Morgan & Morgan today for a free and private case consultation. 

Salaried employees are always exempt: Being classified as exempt is actually based upon the amount of money you make per year, and the state you work in. Currently, exempt employees earn a minimum of $684 per week or $35,568 per year. Your job duties and responsibilities can also impact whether, as a salaried employee, you have exempt status or not. 

Job titles like a manager, supervisor, or administrator mean you are exempt: Again, it's not the title that indicates your status. It's your pay, salary basis, and job responsibilities.

High-earning positions are exempt: Usually, higher-earning positions are exempt but not always. It's better to have an employment lawyer examine your personal situation if you have doubts.

College graduates in white-collar jobs are exempt: Having a degree and working a white-collar job does not automatically mean you are exempt.

If I prefer to get paid a salary, that means my employer can treat me as exempt: You can't give up your rights under the FLSA. Your employer is still obligated to treat you as nonexempt if your weekly or yearly pay doesn't add up to FLSA requirements for exempt status. 

I never work overtime, so it doesn't matter that I'm misclassified: Your employer is still obligated to follow FLSA's record-keeping standards so they can adhere to rules concerning meal times, breaks, and time off.