Overtime Attorney

Our attorneys handle cases on behalf of workers in all fields; however, we’ve found that the following employees are more susceptible to wage and hour violations:

• IT workers
• Service technicians
• Exotic dancers
• Installers
• Pizza delivery drivers
• Sales representatives
• Nurses and healthcare workers
• Tipped employees
• Oil and gas field workers
• Call center workers
• Personal bankers, mortgage brokers, and AMLs/BSAs
• Retail employees
• Disaster relief workers
• Couriers
• Construction workers

If your job is on this list and you were denied overtime or shorted pay, you may be eligible to file an individual lawsuit or a collective action lawsuit on behalf of yourself and other employees to recover your unpaid wages.

There are a number of ways in which your employer may shortchange your wages in violation of federal or state law. For example, your employer may claim that you can’t receive overtime pay unless you have permission to work extra hours (even though they then “let” you work the overtime hours without paying you) or refuse to pay you for time spent doing certain work-related activities (i.e. putting on safety equipment, checking e-mails from home, going to before- and after-hours meetings).

Below are examples of cases our attorneys handle and common violations we see in our practice.

Misclassified as exempt: Some employees are considered “exempt” from overtime pay and other federal pay provisions. This means they are not being paid overtime pay when they work more than 40 hours a week. Unfortunately, employees can sometimes be wrongly classified as “exempt” either because their employer doesn’t understand the law or is trying to avoid paying overtime. For instance, an employer may promote a cashier to “assistant manager” without changing the worker’s job duties to claim that he or she is an “exempt” manager and therefore not entitled to overtime wages. In that case, our attorneys can bring a claim on behalf of the employee for overtime pay the employee was wrongfully denied.  

Misclassified as an independent contractor: Independent contractors typically work on a contract basis for other businesses. They are considered self-employed and do not receive overtime pay. Our attorneys handle lawsuits against employers who have either intentionally or unintentionally misclassified their workers as independent contractors despite the fact that they meet the definition of an employee under the overtime law and should receive overtime pay for the overtime hours they work.

Employer fails to pay minimum wage: The federal minimum wage is $7.25 per hour, but some states have passed legislation enforcing a higher minimum wage. Despite federal and state laws, some employees are cheated out of minimum wage. Day-rate workers and tipped employees are particularly susceptible to minimum wage violations because of how they are paid.

Employer fails to pay for all hours worked: Time spent working for the benefit of your employer – regardless of whether you’re on the employer’s premises – is considered compensable time and should be paid. Examples of compensable time include time spent:

• Checking emails from home
• On-call
• Turning on computers
• Cleaning equipment
• Putting on equipment
• Undergoing some security checks
• Working through meal breaks
• Attending training or safety classes
• Taking short breaks that last between 5 and 20 minutes
• Initial drive time from the company’s location to the first job of the day, or the last drive time of the day back to the company’s location

If your employer isn’t properly tracking your work time, it’s possible you’re getting cheated out of overtime pay because your employer is not properly calculating how much time you worked per week.

Employer pools tips with non-tipped employees: Tip pooling occurs when tipped employees (e.g., waiters, busboys, bartenders, etc.) put their tips in a general “pool” that is later equally divided among tipped workers only. While these tips belong solely to tipped workers, non-tipped employees (e.g., the business owner, managers, cooks, etc.) may wrongly collect a portion of these tips. As a result, the tipped workers’ hourly pay may fall below the required minimum wage because the tip pool is invalid.

Employer doesn't pay overtime each week: Some employers average workers’ hours over the course of two weeks, which is illegal and can cheat workers out of overtime pay. For example, an employee who works 30 hours one week and 50 hours the next has his hours averaged and his paycheck shows that he worked 40 hours each week. As a result, he never receives overtime pay for the 10 hours he worked in the second week. This is sometimes called "comp time."  Another way improper comp time is used is instead of giving their workers overtime pay, some companies may give their workers “comp time” or hours that can be used toward a vacation or sick time. For private employers, this is illegal. 

The employer pays “half-time.” Half pay, also known as a "Chinese overtime" or the “fluctuating workweek”, is when workers receive overtime pay at a rate one-half times their typical hourly rate. There are, however, strict criteria the employee must meet to be eligible for “half-time.”

These criteria include that the employee’s hours fluctuate between weeks, the employee receives a set salary that does not change with the number of hours he or she works, and that the worker and employer have a “clear mutual understanding” that the worker will receive the same amount each week regardless of hours worked. Some employees receive Chinese overtime without meeting these criteria, resulting in underpaid overtime and minimum wage violations.

Some of these case types that we handle fall under wage theft, a wide umbrella containing many ways employers can try and deny you pay.

These forms of theft are alarming and, unfortunately, all too common in many lines of work. When Congress proposed the Wage Theft Prevention and Wage Recovery Act, they found that workers lose, combined, over $8.6 billion yearly from wage theft. This is not just bad for employees, negatively affecting many working families around the country. By also impacting social service funds and tax revenues, the general economy is also damaged by it.

Wage theft isn’t just illegal, it’s also highly associated with various forms of discrimination, another practice we fight against. Women, Congress found, were far more likely than men to experience minimum wage theft. African-Americans and foreign-born workers faced similar struggles. You may get into other disputes with your employer, such as workers' compensation.

There are wage theft laws in place to try and limit and prevent this kind of theft. In Florida, for example, the Miami-Dade County passed a Wage Theft Ordinance to combat employers not paying or underpaying employees. The ordinance was passed in 2010, and ever since Miami-Dade residents have been able to file formal complaints and recoup losses. Different counties and states vary in the specifics of their laws and ordinances, but with so many forms of theft, they’re a necessity.

With some employers continually finding ways to skirt around these laws, it is important to have an experienced wage and hour attorney, who knows your wage theft laws inside and out to protect you in the case of theft.

Each state may have different rules when it comes to overtime pay. Morgan & Morgan has offices in the following states and can help you with your overtime claim:

• Alabama
• Arkansas
• Florida
• Georgia
• Kentucky
• Massachusetts
• Michigan
• Mississippi
• New York
• Pennsylvania
• Tennessee

It is illegal for employers to retaliate against workers who file wage and hour lawsuits. Examples of retaliation include firing or demoting workers, reducing hours, assigning undesirable shifts, cutting down job duties or purposely giving false performance reviews that negatively affect workers’ positions.

If you were retaliated against after filing a lawsuit for lost wages, you may be able to file a separate, individual lawsuit against your employer for the retaliation. Contact the lawyers at Morgan & Morgan today to see if you could have your job reinstated or recover compensation resulting from employer retaliation.

This will vary depending on the specifics of your case. In most cases, you can seek the difference between what you were paid and what you should have been paid under the law.

Employees can sue for wages that were lost during the two years prior to the filing of the lawsuit. If the court finds that an employer purposely broke the law, however, it may allow employees to recover compensation for up to three years. There may also be additional penalties owed under federal and/or state law.

While each case is different, some of our wage and hour team’s recoveries, before attorneys’ fees, include:

$6.5 Million - Aponte et al. v. Comprehensive Health Management, Inc. - In 2012, the lawyers at Morgan & Morgan helped more than 1,400 benefits consultants at Comprehensive Health Management – a company that provides services for government-sponsored health programs such as Medicaid and Medicare – recover $6.5 million in a lawsuit over unpaid overtime. The suit alleged that Comprehensive Health Management purposely misclassified its consultants as “outside salesmen” who were exempt from the Fair Labor Standards Act (FLSA) to avoid paying them overtime.

$1 Million - In re Wayne Farms LLC. Fair Labor Standards Act Litigation - In 2009, our attorneys recovered more than $1 million in a multidistrict litigation against one of the largest poultry producers in the United States, Wayne Farms, after the company was accused of not paying its plant workers for all time spent performing work-related activities. The lawsuits alleged that multiple Wayne plants throughout Mississippi, Alabama, and Georgia did not pay their workers for time spent walking to the production line and “donning and doffing” protective clothing, which the plaintiffs claimed to be compensable time under the FLSA.

Click to download the official Guide To The Fair Labor Standards Act

Additionally, a few of our firm’s most recent recoveries include:

• $9 million for a group of hardware technicians
• $4.75 million for a group of oil and gas inspectors
• $3.5 million for a team of construction managers and superintendents
• $1.1 million for a team of doctors improperly paid by hospital
• $1 million for a group of satellite installers

At Morgan & Morgan, our lawyers only charge you if win a favorable settlement or award. In these cases, we will collect a percentage of the final verdict or settlement.

If you believe you've been cheated out of your well-deserved earnings, our attorneys may be able to help.