Q. What is “overtime”?
A. Overtime is typically calculated as the hours worked in excess of 40 hours per week. Certain medical and governmental work provide for a higher threshold before overtime pay is required (medical providers may be required to work 44 hours at their regular hourly rate while firefighters are entitled to overtime for hours worked in excess of 212 in a 28-day period). A workweek can begin on any day of the week and is seven consecutive twenty-four hour periods, or 168 consecutive hours.
Q. What constitutes time worked under the FLSA?
A. Courts have typically held that time worked under the FLSA includes all time spent performing job-related activities which (a) genuinely benefit the employer, (b) which the employer “knows or has reason to believe” are being performed by an employee, and (c) which the employer does not prohibit the employee from performing. These can include activities performed during “off-the-clock” time, at the job site or elsewhere, whether “voluntary” or not.
Q. May employees enter into agreements exempting overtime pay?
A. Employees may not “bargain away” their right to overtime under the FLSA and state law. Courts will invalidate contracts entered into between an employer and employee that attempt to improperly exempt the employer from having to pay overtime compensation.
Q. Are undocumented employees entitled to overtime pay?
A. Yes. All employees, regardless of their citizenship status, are entitled to overtime pay under the FLSA.
Q. At what rate must overtime be paid pursuant to the FLSA?
A. Overtime compensation must be paid at time and one-half the “regular hourly rate.” If an employee is paid on a daily or weekly basis, the employee’s pay is converted to a regular hourly rate for purposes of calculating overtime.
Q. How do you prove that the employer knew that off-the-clock work was performed?
A. An employer is held to “know” that its employees performed off-the-clock work if the employer could reasonably have determined that such work was being performed by paying attention to the employees. Courts typically find that employers should have knowledge of their employees’ activities unless the employees deliberately hide the fact that he or she performed off-the-clock work.
Q. How does an employee prove the amount of time spent doing off-the-clock compensable activities?
A. Employers are responsible for controlling the work of their employees and maintaining time records for employees who are performing compensable activities. If an employer does not wish for its employees to work overtime, it must prohibit the work from being performed. While it is best for employees to keep detailed records of hours worked, estimates backed up with emails, notes, phone records, co-worker testimony, etc., typically provide sufficient evidence of hours worked.
Q. What is comp. time? Is comp. time allowed instead of overtime?
A. Comp. time is when an employer grants time off for each hour in excess of 40 hours per week, which can be taken at a later date. Unless an employee works in the public sector (government), comp. time systems are not permitted. If your employer forces you to take comp. time, you likely are entitled to FLSA overtime pay.
Q. How are FLSA overtime rights typically enforced?
A. FLSA overtime rights are typically enforced by bringing a private lawsuit or filing a complaint with the state or federal Department of Labor. Private lawsuits are more common and often reach a resolution more quickly.
Q. Does the FLSA contain anti-retaliation provisions?
A. Employees who file complaints with the Department of Labor or who commence legal proceedings are protected by the FLSA’s anti-retaliation provisions. The scope of prohibited retaliation is wide, including not only wrongful termination, but also unwarranted hours reductions, discriminatory or harassing conduct in the workplace, or unwanted physical contact or verbal pressure to dismiss or resolve the case.
Q. Are state and federal employees covered by the FLSA?
A. With certain exceptions, the FLSA applies to state and federal employees.
Q. Where can I obtain additional information regarding my failure to pay overtime claim?
A. FLSA claims are unique so you should contact an experienced wage and hour attorney.