Questions of the Month
- Questions and answers for both employees and employers during a tough economic time. CW Gainesville- Aired 4/23/09
Frequently Asked Questions
Who is entitled to overtime?
Employees who are not exempt under the FLSA are to be paid overtime-
one and half times your hourly rate of pay for work in excess of 40 hours
per work week. To prove that an employee is exempt, the employer
must go beyond showing that the employee is compensated on a salaried basis. The employer must also show that the employee falls within one of the law's categories of "exempt" employees. The most common of which are executives, professionals, administrative employees, and outside salespersons exemptions.
Without getting into all of the elements necessary to fall within each of these categories, suffice it to say that not everyone you consider a "supervisor" is exempt as an "executive," not everyone from whom you expect professional-quality work is exempt as a "professional," and not everyone who performs administrative tasks is exempt as an "administrative employee." Misclassification of employees as exempt is both common and risky for an employer. You can recover up to three years of unpaid overtime, and that amount will be doubled unless the employer can prove that they acted in good faith and with a reasonable belief that they were not violating the FLSA.The employer will also have to pay the employee's court costs and attorneys' fees.
What if I perform both “exempt” and “non-exempt”
job duties, can I still get overtime pay?
Possibly. If you are performing “non-exempt” job duties and tasks for more than fifty percent (50%) of your work time or if you have to take improper unpaid leave. You may have lost your “exempt” status and possibly be entitled to overtime wages.
Example- You are a manager in a store but you spend 75% of your working time ringing up sales and talking to customers. Then you could still be entitled to overtime for all hours worked over 40 in a workweek.
What if I do not have any of my timesheets or proof
of the hours that I worked?
The burden will be on the employer to prove that you did not work the
hours. Under the FLSA, there are specific rules for the employer to follow regarding record-keeping. You will be under an oath to just tell the truth as to when and how long you worked.
If I only work 30 hours one week and then 50 hours
the next, can I still get overtime wages?
Of course, you have worked over 40 hours in one work week and
entitled to overtime wages assuming that you are not exempt under FLSA.
It is prohibited to average workweeks together to avoid overtime payment.
Can I be eligible for overtime if my employer
classifies me as an “independent contractor”
instead of as an employee?
Maybe. Some independent contractors are considered to be
employees in certain situations; and therefore entitled to overtime.
There is a test of the circumstances to see if you are truly an employee verus an independent contractor. Click here to learn about this more.
Should I file a case against my employer now
or should I wait until after I have quit?
YOU SHOULD FILE A CLAIM AS SOON AS THE ALLEGED
VIOLATION HAS OCCURRED. There are time limits that will
bar your from filing any claims for overtime and unpaid wages.
Under Federal FLSA, the time period for which you can file a
claim against your employer for unpaid wages is 2 years from
the date of the violation, but in some cases you have 3 years (willful violations).
If I do have a valid claim, how long does it
take before I obtain any money?
It depends. If the employer decides to settle your claim prior to
going to court, it could take only a few weeks or months.
On the other hand, if court action is needed, it could take several months up to one year before your case is resolved.
If my cash drawer is short $20.00, may my
employer deduct it from my paycheck even
if it was not my fault?
Possibly. The answer to this depends on how much you earn per hour.
The only requirement under state and federal law is that an employer pay you at least min. wage. If the employer chooses to have you pay for
the shortage, the deduction cannot take your pay below the minimum
wage and/or reduce your overtime compensation.
For example, if a
minimum wage of $7.21 an hour is paid an hourly wage of $7.21,
the employer may not make any deductions from the employee’s
wages for the cash register.
If your employer reduces your paycheck for any reason other than authorized deductions (taxes, insurance, fees,plans, etc.) you could have a breach of contract claim and/or minimum wage violation. Your employer should have any other deduction signed by you permitting the deduction. Also you need to know that you cannot waive your rights to be paid minimum wage and/or overtime.
For more information - Check out our Blog
My former employer refuses to give me my final
paycheck. Can they do this?
In most cases, an employer does not have to issue your final paycheck
until the next upcoming payday. Once you have learned that you
will not receive a final paycheck on your usual payday, you will need to contact your employer in writing. The employer has 15 days to correct the mistake of not paying you. If the employer still does not give you the final paycheck, you can sue your former employer.
It is important to keep a record of your hours worked during the relevant pay period(s), and any additional expenses that you have suffered due to receiving your paycheck late.
For more information or have other questions- check out our Blog.
Will I have to pay attorney’s fees for my wage
and hour claim?
I handle most cases on a contingency fee basis. Therefore, if the lawyer is not successful in obtaining any money (damages) for you, then you do not owe any attorney’s fees to the firm.
If we are successful, under statute, the employer that violated the law should pay us a reasonable attorney’s fees, costs and expenses.
Federal law and
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