An unpaid overtime lawsuit may be an option for hourly and salaried employees, as well as certain contractors, who work over 40 hours a week. Federal law, and many state laws, require employers to pay employees for overtime at a rate of not less than 1.5 times their regular rate of pay. These same laws protect underpaid workers from retaliation if they pursue a claim, and an unpaid wages lawyer can help an employee recover the compensation he or she deserves.
For more information, contact Attorney Group today. Our consultations are free, confidential and without any obligation on your part. We can help answer your questions, and if you choose to pursue a claim we can connect you with an affiliated unpaid overtime lawsuit attorney who can assist you throughout the legal process.
Have You Seen an Unpaid Overtime Lawsuit Commercial?
You may have seen an unpaid overtime lawsuit commercial on television advising you of your rights if your employer has failed to pay you properly for your work. The purpose of this article to explore unpaid wages issues in more detail and help you understand your options.
What is Overtime?
As most worker know, overtime is any work performed for an employer in excess of 40 hours during the course of one workweek. The U.S. Department of Labor (DOL) defines overtime pay requirements as follows:
An employer who requires or permits an employee to work overtime is generally required to pay the employee premium pay for such overtime work.
Unless specifically exempted, employees … must receive overtime pay for hours worked in excess of 40 in a workweek at a rate not less than time and one-half their regular rates of pay.
Rules for overtime pay are governed by the Fair Labor Standards Act (FLSA), which also provide other worker protections, including minimum wage and guidance on the proper classification of employees.
Who is Eligible for Overtime Pay?
All “non-exempt” employees are eligible for overtime pay. Employees who are exempt from overtime pay under the FLSA include certain executive, administrative, professional and computer-related jobs, as well as highly compensated employees. To be exempt under these classifications, an employee must be paid at least $455 per week. Specific information on the requirements to be an exempt employee is provided in a DOL Fact Sheet.
In addition, according to the DOL website, the following types of jobs are exempt from FSLA overtime requirements:
- Aircraft salespeople
- Airline employees
- Amusement/recreational employees in national parks/forests/Wildlife Refuge System
- Babysitters on a casual basis
- Boat salespeople
- Buyers of agricultural products
- Companions for the elderly
- Country elevator workers (rural)
- Domestic employees who live-in
- Farm implement salespeople
- Federal criminal investigators
- Firefighters working in small (less than 5 firefighters) public fire departments
- Fishing
- Forestry employees of small (less than 9 employees) firms
- Fruit & vegetable transportation employees
- Homeworkers making wreaths
- House-parents in non-profit educational institutions
- Livestock auction workers
- Local delivery drivers and driver’s helpers
- Lumber operations employees of small (less than 9 employees) firms
- Motion picture theater employees
- Newspaper delivery
- Newspaper employees of limited circulation newspapers
- Police officers working in small (less than 5 officers) public police departments
- Radio station employees in small markets
- Railroad employees
- Seamen on American vessels
- Seamen on other than American vessels
- Sugar processing employees
- Switchboard operators
- Taxicab drivers
- Television station employees in small markets
- Truck and trailer salespeople
State overtime laws may include these jobs. An unpaid overtime lawyer can help you understand state law requirements.
Overtime Final Rule and Injunction
On May 18, 2016, the DOL issued its final overtime ruling in which regulations overseeing overtime pay were updated, potentially affecting over 4 million workers in the U.S. within the first year of implementation. Under the new provisions, nonexempt workers making less than $913 per work week (as opposed to $455 per week under the old rule) would be eligible to receive overtime pay.
The Overtime Final Rule was set to go into effect on December 1, 2016, however, on November 22, 2016, a U.S. District Court Judge in Texas granted an Emergency Motion for Preliminary Injunction, halting the implementation of the ruling. According to the DOL, the agency filed an appeal in conjunction with the Department of Justice on December 1.
Do I Get Overtime If My Employer Calls Me an Independent Contractor?
Many times, employers will attempt to get around overtime laws by classifying their employees as “independent contractors.” By definition, independent contractors work for themselves and are not employees. However, an employee is not an independent contractor just because an employer says they are. If a court determines that an independent contractor is actually an employee, then the employee may be eligible for overtime pay.
According to the DOL, factors that courts consider when determining whether a worker is actually an independent contractor include:
| 1 | The extent to which the worker’s services are an integral part of the employer’s business (examples: Does the worker play an integral role in the business by performing the primary type of work that the employer performs for his customers or clients? Does the worker perform a discrete job that is one part of the business’ overall process of production? Does the worker supervise any of the company’s employees?); |
|---|---|
| 2 | The permanency of the relationship (example: How long has the worker worked for the same company?); |
| 3 | The amount of the worker’s investment in facilities and equipment (examples: Is the worker reimbursed for any purchases or materials, supplies, etc.? Does the worker use his or her own tools or equipment?); |
| 4 | The nature and degree of control by the principal (examples: Who decides on what hours to be worked? Who is responsible for quality control? Does the worker work for any other company(s)? Who sets the pay rate?); |
| 5 | The worker’s opportunities for profit and loss (examples: Did the worker make any investments such as insurance or bonding? Can the worker earn a profit by performing the job more efficiently or exercising managerial skill or suffer a loss of capital investment?); and |
| 6 | The level of skill required in performing the job and the amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent enterprise (examples: Does the worker perform routine tasks requiring little training? Does the worker advertise independently via yellow pages, business cards, etc.? Does the worker have a separate business site?). |
Jobs in which it is common for employers to misclassify their employees include:
- Tow truck drivers
- Call center workers
- Couriers and package delivery workers
- Exotic dancers
- Construction workers
- Truck drivers
- Port workers
Whether drivers for ride-share companies such as Uber or Lyft are properly classified as independent contractors is currently the subject of lawsuits.
Workers in these industries who believe that they have not been paid for overtime are encouraged to speak to an unpaid wages attorney to learn more about their rights in filing an unpaid overtime lawsuit.
Unpaid Overtime Lawsuits
Each year investigators from the U.S. Department of Labor (DOL) Wage and Hour Division find violations of the overtime provisions of the FLSA and dozens of unpaid overtime lawsuits are filed across the U.S. In many cases, workers are misclassified as independent contractors, and employees are denied their rights to overtime pay and other essential benefits and protections.
Unpaid Overtime Lawsuit News
- December 2016 – The U.S. Department of Justice appeals the preliminary injunction.
- November 2016 – According to a statement issued by the DOL, the U.S. District Court, Eastern District of Texas issued a preliminary injunction blocking the final rule set in September.
- September 2016 – DOL announces final rule requiring federal contractors to provide paid sick leave to employees who work on or in connection with certain federal contracts.
- May 2016 – President Obama and Secretary Thomas E. Perez announce the DOL’s final rule regarding the overtime regulations, which will extend overtime pay protections to over 4 million workers in the U.S.
- September 2013 – DOL announces final rule extending the FLSA’s overtime protections to most workers who provide home care assistance to elderly people and people with illnesses, injuries or disabilities.
What Are My Options When I’m Not Paid Overtime That I’m Owed?
In addition to being able to initiate a claim through the DOL, workers who have been unlawfully denied overtime pay may file an unpaid overtime lawsuit with the help of an unpaid wages attorney. In those cases, the employee can seek damages for:
- Back wages not paid by the employer
- Liquidated damages in an amount equal to the unpaid back wages
In certain cases, the employee can also require the employer to pay his or her attorney’s fees for bringing the action to recover unpaid overtime.
Can My Employer Fire Me for Filing an Unpaid Overtime Lawsuit?
Your employer cannot legally retaliate against you for pursuing unpaid overtime. To do so will subject your employer to civil and criminal liability and will, as in an unpaid overtime lawsuit, allow the employee to seek damages for back wages and liquidated damages. If the employee is fired, he or she will also be eligible to sue for reinstatement and other remedies.
Any type of retaliation is prohibited, including:
- Termination of employment
- Reducing job duties or hours
- Submitting a poor performance review that is unwarranted
- Firing a relative of the employee
- Any other type of objectively punitive behavior motivated by the unpaid overtime claim
Employers may have resources available to them to defend an unpaid overtime lawsuit or retaliation claims, so it is important for an affected employee to seek counsel from an unpaid overtime lawsuit attorney to learn more about their rights and remedies.
The Time You Have to Pursue a Claim is Limited. Contact Us Today.
For more information, contact Attorney Group. After you contact us, an attorney will follow up to answer questions that you might have. There is no cost or obligation to speak with us, and any information you provide will be kept confidential.
Please note that the law limits the time you have to pursue a claim or file a lawsuit for an injury. If you think you have a case, you should not delay taking action.
