Answers to Frequently Asked Questions
When is overtime pay due?
Overtime pay (one and
one-half times the regular hourly rate received) is due an employee after 40 hours of work in a workweek. Special exceptions apply with respect to
certain professions and positions, such as police officers, managers, and
hospital and nursing home employees. For
more information about common abuses in listed professions and positions, see
OvertimeScams.us. An employer can
be subject to both federal and state overtime laws because some states have
passed overtime laws in addition to federal law. Employees in those states are due the higher
For a summary review of all states’ minimum wage and overtime laws,
How is severance pay calculated, and when is it due?
Severance pay is not
regulated. A right to severance pay must
be agreed upon by both the employee and employer prior to beginning employment.
Otherwise, a fired employee is not due severance pay. To learn more about severance and age
discrimination claims, see AgeRights.com.
How are vacation pay, sick pay and holiday pay computed, and when are
Vacation, sick, and
holiday pay are not federally regulated.
Payment for time not worked must be agreed upon between employer and
employee prior to employment.
Is extra pay required for night or weekend work?
Extra pay for night or
weekend work must be agreed upon by the employer and employee since it is not
federally regulated. However, if more
than 40 hours are worked within the workweek, the employer must follow overtime
When are pay raises required?
Wage-and-hour laws do not
cover pay raises. Pay raises are
controlled by employers and not by law unless the minimum wage for the U.S. or
a state is increased. The Fair Labor Standards
Act (FLSA) does not require pay raises to be over the minimum wage. Pay raises must be agreed upon by employer
Can an employee be required to perform work outside the employee's job
An employer may require
employees to perform duties outside their job description unless they are under
the age of 18. In general, there are no
federal restrictions on the types of work employees over the age of 18 can do.
I am classified as an independent contractor. Am I entitled to overtime pay?
Most commonly, an
independent contractor is a person who works for more than one company at a
time and fully controls her own work.
Generally, independent contractors are not employees of any one company
and are not entitled to overtime pay.
See Independent Contractor, Mortgage Broker,
Show-up Time at OvertimeScams.us.
Are salaried employees exempt from overtime pay?
employees are due overtime pay. There
are several exceptions to this rule, including commissioned sales employees,
computer programmers, executive, administrative, professional or outside sales
employees, physicians, truck drivers and union employees (with certain
restrictions), all of whom are generally exempt from overtime pay. See OvertimeScams.us for a more detailed
review by job description, title, and industry.
How do I prove that my employer knew or had reason to believe that
"off the clock work" was being performed?
An employer is held
responsible for her employee’s actions, regardless of whether or not the
employer knew what the employee was doing.
Employers must keep detailed time records. An employer can be liable even without actual
knowledge of the work being performed because employers are able and have a reasonable
opportunity and duty to inquire as to what the employee is doing after hours at
work. But if the employee hides her
actions from the employer, the employer may not have to pay overtime.
What if I did not seek approval for overtime? Am I still entitled to
Whether or not approval
is sought, if an employer knows that more than 8 hours a day were worked by an
employee for a total of more than 40 hours in a workweek, that employer is
required to pay overtime.
When is “double time” due?
Double time is not
federally required. An agreement between
employee and employer must include a provision for “double time” in order for
the employee to receive it.
Can compensatory time be substituted for cash due to overtime?
Compensatory time (“comp
time”) is applicable to government employees and cannot be substituted for
overtime pay. The FLSA generally does
not permit “comp time” to be substituted for cash in overtime cases. See Comp Time,
Bonus and Shift Pay, Incorrect Rate of Pay.
What is the workweek standard?
A workweek is designated
by seven (7) consecutive days of work and is the basis for calculating overtime
pay. Hours worked during the workweek
cannot be averaged between more than one workweek. Each workweek stands alone. However, specially listed professions, such
as medical-care employees, police officers, and fire fighters, are permitted to
be paid on special “alternative work periods.”
See Police, Firefighters, EMS & Rescue
Does the FLSA guarantee any particular amount of work time?
The FLSA does not
guarantee any set amount of work time.
Federal law does not set a particular schedule of work. An employer can lawfully “adjust schedules”
within a workweek to avoid paying overtime to employees.
How can I enforce my FLSA rights?
If you want to sue, it is
best to hire an attorney with knowledge and experience in employment law. Keep a record of your employer's actions and
she is not following federal labor guidelines.
You may also contact the U.S. Department of Labor (DOL) and discuss your
employer’s actions. The DOL does not
always prosecute a case, even though it may have investigated a claim.
Can an employer fire an employee if she sues for unpaid wages?
An employer cannot
legally fire an employee or retaliate against her if she sues for unpaid
wages. Common examples of retaliation
include blacklisting employees who have made FLSA claims, refusing to hire
applicants who have made FLSA claims at a previous employment, firing relatives
of the employee, reducing job responsibilities, assigning the employee to
unpopular job duties or shifts, disciplining the employee out of proportion to
past disciplinary practices, refusing raises, or lowering performance
If I have an FLSA claim, what time period does it cover?
The FLSA will only allow
payment recovery beginning two (2) years prior to filing the complaint in
court. If the employer knowingly
disregarded federal regulations, the FLSA will require payment be made
beginning three (3) years prior to filing the complaint in court. Giving a complaint to an employer, or the
Department of Labor, is not the equivalent of filing a complaint in court.
Do all “similarly situated” employees have to participate in an FLSA
suit if one employee decides to prosecute her employer?
No. Those employees
“similarly situated” may file an FLSA suit together as a class action. However, if the employees win the suit, those
employees who did not join in the suit would not be entitled to the benefits of
any judgment. “Similarly situated” is a
I got a severance agreement and/or signed a waiver saying I would not
sue the company. What rights do I have?
All private employees
have the right to minimum and overtime wages even if they signed a waiver. Therefore, for overtime purposes, employees
who sign a waiver or a severance agreement
have the same rights as if they hadn’t signed anything at all. In most cases, only waivers supervised by the
DOL or obtained in a private lawsuit can eliminate an employee’s rights. Certainly, see an attorney before signing any
document that waives your rights. But
even if you have already signed a document in exchange for severance pay, ask
an attorney to review it. Experienced employment attorneys routinely perform
this task in their practice. Even though
a consultation fee may be charged, often the fee is not as large as you might
think. The attorney will then let you
know what rights, if any, you still possess.
Employers often overlook important details and leave open certain
opportunities for employees to receive pay due under federal law.
What are liquidated damages?
Liquidated damages are
unpaid back wages, possibly resulting in double the unpaid amount. Employees are generally entitled to
liquidated damages and can receive them through a lawsuit against the employer.
How do employees pay their FLSA lawyer if they cannot afford one?
Paying an FLSA lawyer is
between you and your attorney. Some FLSA
lawyers work on a “contingency fee” basis where they collect payment after
judgment in the case. Usually, a “contingency
fee” is a percentage of the awarded judgment. Suit expenses will either be paid
by the client or advanced by the lawyer, depending on the arrangement. Before hiring an attorney, make sure you
understand the financial arrangement completely, and obtain the attorney’s fee
agreement in writing.
How long does an FLSA case take?
FLSA timelines are
unpredictable, like any other type of lawsuit.
Some cases can be settled out of court quickly. Other cases can take quite a long time to be
brought to trial. Every case is
Is money recovered in an FLSA case taxable?
Yes, money recovered in a
case is the same as actually having received the pay during employment.
What is the
federal minimum wage?
The federal minimum wage
is $5.15 per hour. In states where both
state and federal minimum wage laws apply, the employee is entitled to the
higher wage of the two. See
StateOvertimeLaw.us for a review of states’ laws.
Who is eligible for the federal minimum wage?
employees are eligible for the federal minimum wage. Employees of federal,
state or local government agencies, hospital employees, school employees, and
domestic workers are also entitled to the minimum wage. The FLSA contains a
number of exemptions from the minimum wage that may apply to some workers.
What happens if
state law requires a different minimum wage than federal law?
Where state law requires
a higher minimum wage than the federal law, that state’s higher standard