Some FLSA Myths Uncovered

See if you can answer these questions correctly. Lawyers are ready to help your employees calculate the damages and file a claim against you to recoup owed overtime wages as well as additional damages. Make sure you stay on the right side of FLSA.

What is overtime pay?
Overtime pay is additional compensation for working in excess of 40 hours per week. Usually, overtime pay one and a half times your hourly rate for each hour worked 40 hours per week.
Overtime is the term used to define work that is performed in excess of 40 hours per week (a defined, seven consecutive day period) in accordance with the Fair Labor Standards Act (FLSA). This federal law does not require premium pay for daily overtime or simply because an employee works on a Saturday, Sunday, or a holiday. Nor does it require the employer to include time paid for but not actually worked, such as vacation or sick leave and holidays, in calculating whether overtime has been worked. A number of states and Puerto Rico go beyond federal law and require overtime compensation when work exceeds eight or more hours per day or for specific occupations. You will want to check with the department of labor for each state in which you operate regarding its overtime provisions.

What if I agreed with my boss to work overtime but not be paid for it?
It doesn't matter. No agreement that limits your right to overtime can be enforced. Overtime Pay May Not Be Waived: The overtime requirement may not be waived by agreement between the employer and employees. An agreement that only 8 hours a day or only 40 hours a week will be counted as working time also fails the test of FLSA compliance. An announcement by the employer that no overtime work will be permitted, or that overtime work will not be paid for unless authorized in advance, also will not impair the employee's right to compensation for compensable overtime hours that are worked.

When I work overtime, my boss doesn't pay me, I just take some time off the next week. Is that allowed?
The overtime pay requirement may not be waived by agreement between the employer and the employee. The overtime pay requirement cannot be met through the use of compensatory time off (comp time) except under special circumstances applicable only to state and local government employees.

What if I have no written records or proof of the hours I worked?
It is not necessary that you have any detailed records. It is your word under oath that is essential. The employer will need detailed records and documents to try and disprove your overtime claim.

My boss tells me that since I work 30 hours one week and 50 hours the next week, that I average 40 hours per week and am not entitled to overtime. Is that correct?
No, a single workweek is the standard. The averaging of workweeks is expressly prohibited by law! Assuming that you are not otherwise exempt under the FLSA, you are entitled to overtime compensation for week two (the 50 hour work week). The Act applies on a workweek basis. An employee's workweek is a fixed and regularly recurring period of 168 hours -- seven consecutive 24-hour periods. It need not coincide with the calendar week, but may begin on any day and at any hour of the day. Different workweeks may be established for different employees or groups of employees. Averaging of hours over two or more weeks is not permitted. Normally, overtime pay earned in a particular workweek must be paid on the regular pay day for the pay period in which the wages were earned.

Am I exempt because my employer calls me exempt?
No, it makes no difference if your employer calls you exempt or non-exempt. It also makes no difference if your employer gives you a title such as "manager" or "department head," making it appear as if you should not be paid overtime. For example, some employers will call workers "assistant managers" to avoid paying overtime when those employees are actually regular line workers who are not exempt and should be paid overtime. What matters is what you do, not what you are called.

I make $10.00 per hour and work 60 hours every week. My boss pays me $600.00. Am I entitled to overtime?
Assuming that you are not otherwise exempt under the FLSA, your boss has short changed you $100.00 for every week that you worked 60 hours.
40 hours @ $10/hr. equals $400.00
20 hours @ $15/hr. equals $300.00 (time and a half is 1.5 times the hourly rate ($10/hr) or $15. You should have been paid $700.00.

I'm not paid hourly, I'm paid a weekly salary. My boss tells me that I am not entitled to overtime. Is he correct?
The fact that you are paid a weekly salary does not, by itself, make you exempt under the FLSA. Your employer cannot pay you a weekly salary simply to avoid paying you overtime. Assuming that you are not otherwise exempt under the FLSA, your boss must convert your weekly pay to an hourly rate and pay you time and a half for all hours worked in excess of 40 hours. This applies to monthly and semi-monthly salaries as well.

I'm paid a weekly salary for 40 hours at $10.00 per hour, but one week I may work 35 hours and the next 44 hours. My boss tells me that our system is fair to both of us, I get a consistent check and he gets his schedule covered without all the paperwork. Am I entitled to overtime?
Assuming that you are not otherwise exempt under the FLSA, your boss must convert your weekly pay to an hourly rate and pay you time and a half for all hours worked in excess of 40 hours. Doing the math, your boss owes you $10.00 more for the two week period.
Week 1 - 35 hours @ $10/hr. equals $350.00
Week 2 - 40 hours @ $10/hr. equals $400.00
Week 2 - 4 hours @ $15/hr. equals $60.00
You should have been paid $810.00 for the 79 hours you worked. Your check varied from $350 one week to $460 the next. You need to adjust for these income changes going forward.