Unpaid Overtime and Other Wage Theft Violations
A lot of employees and employers alike, wrongly assume that just because an employee is paid a salary or a day rate, then that employee is not entitled to overtime. This is what employers often wrongly refer to as salary-exempt or overtime exempt. As a general rule, every employee must be paid an overtime rate for the hours an employee works beyond forty (40) hours in a single work week. It is the employer’s burden to show that an employee is “exempt” and not entitled to overtime.
Bear in mind that the overtime exemptions are highly technical; do not assume you are exempt just because you are paid a salary or because you think your employer knows the law. If you have questions about your legal right to overtime call the overtime lawyers at Herrmann Law 817-479-9229 or fill out our questionnaire and one of our overtime lawyers will contact you.
A fair day’s wage for a fair day’s work is the mantra of the American worker. There are several laws that ensure employees receive a fair wage. However, what happens when an employee holds up their end of the bargain, but an employer fails to pay a fair day’s wage? The employment lawyers at Herrmann Law routinely represent employees in compensation related cases to recover unpaid wages. If you have questions about your compensation including: unpaid commissions, unpaid gratuities, unpaid wages, unpaid overtime, unpaid tips, wage deductions, salary-exempt status, or any other questions about your wages, call the employment attorneys of Herrmann Law at: 817-479-9229 or submit your case online and our office will contact you.
If your employer has treated you differently or terminated you because of a disability, call the employment attorneys of Herrmann Law.
SALARY PLUS OVERTIME
Employees and employers, both, may be surprised to learn that overtime pay is more than just about whether an employee is paid a salary, day rate, per job rate, or other piecemeal rate. Many of the overtime exemptions (with a few exceptions) require that the employee meet three tests in order to be overtime exempt:
1) Salary Level Test; 2) Salary Basis Test; 3) Job Duties Test.
Test 1: Salary Level
- First, in order to be exempt, the employee must be paid at least $455 per week or $910 biweekly or $1971.66 monthly or $23,660 annually. Again, , do not assume you are exempt from overtime just because you are paid a salary, day rate, or other set amount of pay that equals the salary level of $455 per week.
Test 2: Salary Basis
- Second, even if an employee meets the salary levelset forth in Test 1 the employee must receive that salary on a predetermined, fixed basis. The amount of pay must be predetermined (i.e. not an hourly rate of pay) and also cannot be subject to reduction due to variations in quality or quantity of work performed (except for some very narrow specified circumstances). In other words, it is not enough that an employee receive $455 per week; the employee must be guaranteed $455 per week, regardless of the number of hours worked.
Test 3: Job Duties (this is where employers often get it wrong)
- Finally, in addition to an employee meeting the salary level and salary basis tests, the employee must also meet the job duties test. The specific job duties requirements vary according to an employee’s specific type of exemption, which can be better determined through a consult with our overtime lawyers at Herrmann Law or you can check out our blog,where we have written several articles on overtime issues for different industries and exemptions. Ultimately, there are two important things to keep in mind: 1) overtime exemptions are more than just about a job title – the job duties test must be satisfied; and 2) the employer has the burden of proving its entitlement to classify an employee as overtime exempt.
- If you have questions about your entitlement to receive overtime or questions about a specific overtime exemption, call the overtime lawyers at Herrmann Law: 817-479-9229 or fill out our information form one of our overtime lawyers will contact you.
- Even if you are paid on a salary basis, you may still be entitled to overtime.Employers may try to skirt the overtime laws by classifying you as salary exempt. However, just donning an employee with a salary exempt title does not mean that you are actually exempt from overtime. In order to be “exempt from overtime” you must be employed in a specific salary-exempt position and perform as part of your regular job duties those activities which deem an employee exempt.
- Ultimately, the categories of overtime exemptions are very fact-specific and require consultation with one who knows the employment laws. Call the overtime lawyers at Herrmann Law to answer your questions about overtime exemption laws: 817-479-9229 or submit your information to us online and one of our overtime lawyers will contact you.
COMMONLY MISAPPLIED OVERTIME EXEMPTIONS
If you believe your employer has misclassified you as salary-exempt, you may be entitled to substantial unpaid overtime. The following jobs and job titles are prone to employer misclassification:
In our experience, employers commonly misclassify employees to avoid paying overtime. If you have questions about your entitlement to overtime, including whether you are incorrectly classified as salary-exempt, please call the overtime lawyers at Herrmann Law for a consultation 817-479-9229 or fill out our questionnaire and one of our overtime lawyers will contact you.
If you are correctly classified as “salary-exempt” then you must be paid on a “salary basis.” Currently, the minimum salary amount for exempt employees is $455 per week. However, the amount of the employee’s salary is not the only requirement. The way in which the employee is paid also is important. Being paid on a “salary basis”, means that the must employee receive a predetermined amount of compensation each pay period that is not subject to reduction (due to variations in the quality or quantity of the employee’s work).
Subject to certain exceptions, the employee must receive his or her full salary for every workweek in which the employee performs any work, without regard to the number of days or hours worked. In most circumstances, salary deductions may not be made for absences occasioned by the employer or by the employer’s operating requirements when work is not available, or for reasons of work quality, or for partial day’s work.
If your employer makes an improper salary deduction, your employer may have abandoned the overtime exemption. This means that an illegal deduction may relinquish your employer’s right to use an overtime exemption, entitling you to be compensated back wages for all of the overtime you worked.
If you are a salaried employee and have questions regarding your exempt status, including deductions or your right to receive a set, predetermined salary, call the overtime lawyers at Herrmann Law to answer your questions about your entitlement to : 817-479-9229 or submit your information to us online and one of our overtime lawyers will contact you.
- It is bonus time! What if I told you that receiving a bonus may increase your overtime pay You may wonder how a bonus could have any impact on your overtime pay. Yet, there are instances where bonuses must be calculated into an employee’s overtime; however,employers will often fail to calculate the correct overtime rate for an employee who is paid bonuses, commissions, or gratuities.
- Whether your bonus or commission should be included in the overtime rate depends on whether your bonus is discretionary or non-discretionary. Discretionary bonuses are unexpected and not announced in advance to the employee – and are not included in calculating the overtime rate.
- However, non-discretionary bonuses or commissions are included in the overtime rate. A non-discretionary bonus or commission is something that is announced to the employee and qualifies to be included in the employee’s overtime pay. Non- discretionary bonuses are used to encourage employees to work more steadily, rapidly or efficiently, and are designed to encourage employees to work longer hours. If you are paid a non-discretionary bonus, you may be entitled to a substantial sum of money in unpaid overtime wages.
- If you have questions about your entitlement to overtime, including whether you are improperly classified as salary-exempt, please call the employment lawyers at Herrmann Law for a consultation 817-479-9229 or submit your information to us online and one of our overtime lawyers will contact you.