Empowering Individuals

You might be losing overtime pay!

Posted by Giovanna A. D'Orazio | Jul 21, 2015 | 0 Comments

Over the past several years we've noticed a move by many businesses towards attempting to classify workers as either “independent contractors” or what are known as “exempt” employees.  This may not seem like a big deal to the employee at the time, however the classification can make a very big difference.

The FLSA protects your right to overtime

The Fair Labor Standards Act (“FLSA“) protects employees and provides that, if they are covered, they be paid overtime (time and a half or more) for any hours over 40 hours in a given workweek.  It also ensures that they are paid at least a minimum wage for their services.

Employers, in an effort to avoid having to pay overtime, often decide independently that the employees or class of employees are exempt, and are therefore not entitled to receive overtime pay.  This is often wrong.

The FLSA sets out clear guidelines for those employees who are considered “exempt” from overtime pay – and frankly if you don't work in an office it is more likely than not that you are covered by the act and entitled to overtime.  So-called “blue collar” workers, including non-management construction workers for example, are generally covered.  So are Police, Firefighters, Paramedics and other “first responders.”

Office workers may be covered as well, especially if their job duties do not include any supervisory responsibilities or oversight of others.  A mail room attendant, for example, is likely covered and therefore entitled to overtime.  The US Dept. of Labor has a great fact sheet for employees here.

The Burden is on the employer

The burden here is on the employer to show that the employee was not entitled to overtime, and not the other way around.  What this means is that if you believe that you were entitled to overtime but did not receive it, you should challenge the determination by your employer.  And don't worry, courts have recently said that if you challenge your employer's classification – whether on your own behalf of on behalf of your co-workers – you are protected from retaliation.  What that means practically is that you cannot and should not be fired for complaining that workers are not being paid overtime.

If you have questions about unpaid  wages or overtime give us a call.  518-308-8339.  We're happy to help.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna also has experience litigating Article 78 proceedings in New York State court.


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