OVERTIME PAY VIOLATIONS

The Fair labor Standards Act (FLSA) generally requires most employers to pay their employees time and one-half (1 ½ ) their regular hourly rate of pay for working more than forty (40) hours in a workweek. Such compensable work time may include forced, mandatory overtime as well as "off the clock" work. Even if an employer has a written policy prohibiting overtime, the employer may be required to pay for overtime worked if that policy was not enforced or if the employee was otherwise permitted to perform the work.

There are many schemes employers use to avoid paying their employees overtime. Some employers require or permit employees to work “off-the-clock” by having employees perform certain tasks before clocking in or after their shift is over. Another trick many employers use is they automatically deduct for meal periods, but do not completely relieve their employees of their work duties. These improper automatic deductions are common in the healthcare industry where nurses are often responsible for their patients and subject to recall during their meal periods. Some employers illegally deduct pay for short breaks. The law, however, usually requires employers to pay their employees for breaks that last only five (5) to twenty (20) minutes.

Other employers make their workers sign independent contractor agreements even though the worker is not really in business for himself. The actual working relationship, not a piece a paper, determines whether a worker is an employee. In general, an independent contractor works for more than one company at a time and controls his own work.

One of the most common wage violations is when an employer tries to avoid paying overtime by simply paying a salary to employees who are not exempt from the requirement that they be paid overtime. In general, executive level employees, administrative employees and professional employees are exempt from the overtime requirements. Some employers will give an employee a fancy title, but it is the actual duties the employee performs, not the job title, that determine whether an employee is entitled to overtime pay. For example, even if an employer creates a job title of "assistant manager" and pays that employee a salary, if the employee does not really manage anything or supervise anyone, he probably should be paid on by the hour and be entitled to overtime pay.

Another way employers commit wage theft is by misusing the “tip credit” in the restaurant industry. In certain situations, restaurants who employ wait staff can pay their wait staff $3.02 less than the minimum wage for hours worked where the employee receives tips. That $3.02 is sometimes called a “tip credit.” To be able to pay its employees below the minimum wage using the “tip credit,” an employer must first meet certain rules. If the employer does not comply with these rules, the “tip credit” is invalid and you may be entitled to the $3.02 deducted from your pay for each hour you worked. One common way the tip credit can become invalid is when an employer requires its employees to share their tips with employees who do not customarily receive tips, such as the restaurant manager, dishwasher, or chef. Such an improper tip pool can invalidate the tip credit. Another violation is when restaurant employers require their tipped employees to work only for tips. Bober & Bober, P.A. has handled many cases involving the restaurant industry. Even customarily tipped employees—waiters, waitresses, bartenders, busboys, food runners—are entitled to legal protection.