What is the Fair Labor Standards Act (FLSA)?
Which hours count as “overtime hours?”
How much is an employer required to pay for overtime?
Can an employer simply give you compensatory time (give your time back later),
instead of paying an overtime rate?

Can my employer refuse to pay me overtime if I am classified as a
“salaried” employee?

Can employers legally avoid paying overtime simply by making 
employees work unrecorded hours?

Does an employer have to pay for overtime that wasn’t authorized?
Does the FLSA put a limit on the number of hours an employer can
require from an employee?

Am I entitled to be paid double my usual rate for weekends and holidays?
Can employers avoid paying overtime in a given week by reducing 
hours below normal in another week?

Is an employer obligated to pay overtime whenever an employee works 
more than eight hours in a single day?

What do I do if I think my employer is not complying with the FLSA?
How long does an employee have to file a suit?
If I want to know my rights under FLSA, should I consult an attorney?
What can filing suit really do for me?

Q. What is the Fair Labor Standards Act (FLSA)? 
A. This a federal law which says, among other things, that an employer must pay time and one half for all overtime hours that the employer demands from employees each week.

Q. Which hours count as “overtime hours?”
A.
 All hours actually worked by an employee which exceed a threshold number set by the FLSA. For most employees, this means any hours after or in excess of the first 40 hours in a given week. Some special employees — like paramedics, police, or firefighters — may have a different threshold number for calculating overtime.

Q. How much is an employer required to pay for overtime?
A. Employers must pay the sum of the regular hourly rate plus 50% of the regular hourly rate. If your usual pay is not based on an hourly rate, your employer must translate your pay into an hourly rate when calculating overtime. Your employer should include any bonuses based on job performance or longevity when calculating your real hourly rate for overtime purposes.

For example, suppose Natasha is paid $8/hr. For all hours above 40 that Natasha works, she should receive $12/hr. That’s because it is the sum of her usual hourly rate, $8/hr., plus 50% of her usual hourly rate, $4/hr., for a total overtime rate of $12/hr.

In a different example, let’s suppose that Kareem gets $12/hr. and works 48 hours a week. Kareem also gets a productivity bonus of $50. For purposes of calculating overtime, Kareem’s employer should follow this pattern:

12*48 = $576 + $50 = 626/48 = $13.04 (regular rate, for purposes of overtime calculation).

$13.04*1.5 = $19.56 (overtime rate, the amount Kareem should get per hour of overtime).

Q. Can an employer simply give you compensatory time (give your time back later), instead of paying an overtime rate?
A.
 Only if you work for the government. Private employers are not allowed to substitute “comp time” for overtime cash.

Q. Can my employer refuse to pay me overtime if I am classified as a “salaried” employee?
A. It depends on your duties. Under the FLSA, a salaried employee is only exempt from collecting overtime pay if that employee also performs certain specific kinds of duties. Some salaried employees, however, do not perform these duties and are thus still entitled to overtime pay.

Q. Can employers legally avoid paying overtime simply by making employees work unrecorded hours?
A.
 No. Asking an employee to sign out on the time clock, but continue working, does not diminish the employer’s legal obligation to pay overtime. The FLSA applies to all hours actually worked , whether recorded or not, provided that the employer knew or should have known that the employee was still working.

Q. Does an employer have to pay for overtime that wasn’t authorized?
A. Yes, if the employer knew about the overtime work and made no attempt to discourage the work. Where the employer quietly accepts the work, the employer can be bound to pay overtime without having made a precise verbal or written request for the overtime work.

Q. Does the FLSA put a limit on the number of hours an employer can require from an employee?
A. No. The employer is allowed to ask for as many hours as she or he can get, provided that she pays for overtime according to the FLSA’s formula.

Q. Am I entitled to be paid double my usual rate for weekends and holidays?
A.
 No. The FLSA does not require an employer to pay anything greater than the “1.5” overtime formula already discussed.

Q. Can employers avoid paying overtime in a given week by reducing hours below normal in another week?
A. No. The FLSA requires an employer to calculate overtime based on hours per week, not hours per pay period. Thus, it makes no difference if an employee’s pay period is longer than one week. An employer may not withhold overtime pay for a given week just because the employee has not averaged over 40 hours in a longer period.

Q. Is an employer obligated to pay overtime whenever an employee works more than eight hours in a single day?
A.
 No. Legal overtime is based on the number of hours you work per week, not per day. Exceeding 8 hours in a single day will not entitle you to overtime, unless this also causes you to have more than 40 hours for the week.

Q. What do I do if I think my employer is not complying with the FLSA?
A.
 You can contact the U.S. Department of Labor and make a complaint. As an alternative, you can get a private attorney to sue your employer.

Q. How long does an employee have to file a suit?
A.
 An employee can collect unpaid overtime for the two-year period preceding the filing of the lawsuit, as well as overtime earned while the suit is pending. The covered time period is three years prior to filing suit if the employee can show that the employer was aware of violating the FLSA when the violations occurred. Remember that the time period covered by the suit stretches back from the date of filing suit , not the date you contact the Department of Labor or complain to your employer. Thus, if you are deprived of overtime today, you can recover this money only if your suit is filed within two years.

Q. If I want to rights under FLSA, should I consult an attorney?
A.
 Yes. There is more to know about the FLSA than can be summarized here. Not all attorneys are familiar with the FLSA. You should find an attorney with experience in labor and employment cases.

Q. What can filing suit really do for me?
A. 
An employee who receives a favorable judgment from the court is entitled to recover 2 times the amount of unpaid overtime, plus out-of-pocket litigation expenses and attorney’s fees.

Q. Is there any way an employer who has been found to have violated FLSA can limit the damages to the amount of unpaid overtime?
A. An employer can avoid paying “liquidated damages” (the double damages just described) only by showing that it (the employer) had reasonable grounds for believing that it did not have to pay overtime. This is difficult, and double damages are awarded more often than not.

Q. Do I have to pay taxes on money I recover in a lawsuit for unpaid overtime?
A. 
Yes.

Q. Do I have to pay my attorney before my case is resolved?
A.
 It depends on what agreement you have with your attorney. In FLSA cases, agreements where the attorney accepts a percentage of the amount you recover are very common. In these agreements, you do not pay any money until the suit is concluded, and only if you have recovered money from the opposing party. Your agreement with your attorney will probably discuss who pays for out-of-pocket expenses, such as filing fees, mailing costs, or the cost of hiring experts.

Q. Can an employer legally terminate an employee for filing suit under the FLSA?
A.
 No. Where termination is intended as retaliation for a suit under FLSA, the termination is itself a violation of the law. The FLSA is very clear on this point, saying that an employee cannot be terminated or otherwise discriminated against for filing a complaint about FSLA violations. An employer who retaliates in this manner can be fined or even criminally prosecuted, and the employee is legally entitled to reinstatement, payment of lost wages, attorneys fees, and sometimes punitive damages. Sometimes the individuals involved in the retaliation can be personally sued along with the company.

Q. Does an employer have to pay for overtime that wasn’t authorized?
A. Yes, if the employer knew about the overtime work and made no attempt to discourage the work. Where the employer quietly accepts the work, the employer can be bound to pay overtime without having made a precise verbal or written request for the overtime work.

Q. Does the FLSA put a limit on the number of hours an employer can require from an employee?
A. No. The employer is allowed to ask for as many hours as she or he can get, provided that she pays for overtime according to the FLSA’s formula.

Q. Am I entitled to be paid double my usual rate for weekends and holidays?
A.
No. The FLSA does not require an employer to pay anything greater than the “1.5” overtime formula already discussed.

Q. Can employers avoid paying overtime in a given week by reducing hours below normal in another week?
A. No. The FLSA requires an employer to calculate overtime based on hours per week, not hours per pay period. Thus, it makes no difference if an employee’s pay period is longer than one week. An employer may not withhold overtime pay for a given week just because the employee has not averaged over 40 hours in a longer period.

Q. Is an employer obligated to pay overtime whenever an employee works more than eight hours in a single day?
A.
No. Legal overtime is based on the number of hours you work per week, not per day. Exceeding 8 hours in a single day will not entitle you to overtime, unless this also causes you to have more than 40 hours for the week.

Q. What do I do if I think my employer is not complying with the FLSA?
A.
You can contact the U.S. Department of Labor and make a complaint. As an alternative, you can get a private attorney to sue your employer.

Q. How long does an employee have to file a suit?
A.
An employee can collect unpaid overtime for the two-year period preceding the filing of the lawsuit, as well as overtime earned while the suit is pending. The covered time period is three years prior to filing suit if the employee can show that the employer was aware of violating the FLSA when the violations occurred. Remember that the time period covered by the suit stretches back from the date of filing suit , not the date you contact the Department of Labor or complain to your employer. Thus, if you are deprived of overtime today, you can recover this money only if your suit is filed within two years.

Q. If I want to rights under FLSA, should I consult an attorney?
A.
Yes. There is more to know about the FLSA than can be summarized here. Not all attorneys are familiar with the FLSA. You should find an attorney with experience in labor and employment cases.

Q. What can filing suit really do for me?
A.
An employee who receives a favorable judgment from the court is entitled to recover 2 times the amount of unpaid overtime, plus out-of-pocket litigation expenses and attorney’s fees.

Q. Is there any way an employer who has been found to have violated FLSA can limit the damages to the amount of unpaid overtime?
A. An employer can avoid paying “liquidated damages” (the double damages just described) only by showing that it (the employer) had reasonable grounds for believing that it did not have to pay overtime. This is difficult, and double damages are awarded more often than not.

Q. Do I have to pay taxes on money I recover in a lawsuit for unpaid overtime?
A.
Yes.

Q. Do I have to pay my attorney before my case is resolved?
A.
It depends on what agreement you have with your attorney. In FLSA cases, agreements where the attorney accepts a percentage of the amount you recover are very common. In these agreements, you do not pay any money until the suit is concluded, and only if you have recovered money from the opposing party. Your agreement with your attorney will probably discuss who pays for out-of-pocket expenses, such as filing fees, mailing costs, or the cost of hiring experts.

Q. Can an employer legally terminate an employee for filing suit under the FLSA?
A.
No. Where termination is intended as retaliation for a suit under FLSA, the termination is itself a violation of the law. The FLSA is very clear on this point, saying that an employee cannot be terminated or otherwise discriminated against for filing a complaint about FSLA violations. An employer who retaliates in this manner can be fined or even criminally prosecuted, and the employee is legally entitled to reinstatement, payment of lost wages, attorneys fees, and sometimes punitive damages. Sometimes the individuals involved in the retaliation can be personally sued along with the company.

Q. When I left the company, I was required to sign a waiver saying I would not sue the company. Does that mean I’ve given up my right to sue for unpaid overtime?
A.
No, you can still sue. If you gave the employer a waiver in the course of a lawsuit (for example, as part of a settlement agreement), that is different. Such a waiver would take away any further right to sue. If the Department of Labor approves a waiver, it may be enforceable. But otherwise, waivers given at the time you were hired or when you left will not prevent a lawsuit.

The overtime lawyers of the Tran Law Firm represents clients who have not been fairly paid. If you think you are owed back pay or had illegal deductions made from your wages, contact the overtime lawyers at the Tran Law Firm to review your overtime case.

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