In November 2011, the Alaska Department of Labor and Workforce Development made a determination that the plaintiff was not an exempt employee and was entitled to overtime pay but the company refused to follow the department’s determination.  The suit seeks to recover overtime pay for all employees who worked in a sales or marketing position for Alaska Communications.

As the plaintiff’s attorneys commented, the overtime laws were designed to reduce unemployment by discouraging employers from having a few employees work long hours instead of hiring additional workers.  If employers can classify more employees as exempt, they can work these employees long hours without paying them overtime pay and, therefore, have no incentive to hire additional workers.

Most commonly, an employer will label an employee as a “manager” or “supervisor”, pay them a salary, and claim they are exempt under the Executive Exemption.  In rare instances, the employee’s salary may not meet the minimum required which is $455 per week (even though it is relatively low).  More often, however, the employee’s duties do not meet the exemption requirements.  Usually they lack the necessary managerial/supervisory authority required by the exemption.  It is important to remember that merely being paid a salary or being labeled a manager does not determine your exempt status – only your job duties do.

If you feel you are misclassified as an exempt employee and should be receiving overtime pay and would like us to evaluate your situation, please call us at 713-782-LAW1 (5291) or 1-866-559-0400 or submit your information using our convenient Case Evaluation form.

The existing exemption under the Fair Labor Standards Act applies to employees who work as computer systems analysts, computer programmers, software engineers or other similarly skilled workers who do systems analysis or design and development of computer systems or programs. Under the current wage laws, most IT tasks do not qualify as exempt. For further information, please see our discussion about Computer IT Tech positions.

The proposed bill expands the job classes covered by the exemption to include “any employee working in a computer or information technology occupation (including, but not limited to, work related to computers, information systems, components, networks, software, hardware, databases, security, internet, intranet, or websites) as an analyst, programmer, engineer, designer, developer, administrator, or other similarly skilled worker”. The duties covered by the proposed bill include, “the application of systems, network or database analysis techniques and procedures” and “the design, development, documentation, analysis, creation, testing, securing, configuration, integration, debugging, modification of computer or information technology”. In addition, employees who supervise individuals performing these duties would also be exempt under the new wage laws.

IT professionals have expressed concern that these proposed changes to the wage laws would essentially eliminate overtime pay for anyone working in a computer-related position.

If you would like to track this bill and offer your opposition or support, please go to http://www.govtrack.us/congress/bill.xpd?bill=s112-1747.

If you currently work in the computer field and believe you are improperly classified as exempt, we would be happy to evaluate your situation.  You can call us at 713-782-LAW1 (5291) or 1-866-559-0400 or submit your information using our convenient Case Evaluation Form.

One of the biggest reasons overtime rules are broken is that employees don’t fully understand their rights. We encourage you to peruse our blog and see if your rights are being respected. Our law firm concentrates its practice on wage and hour overtime violation cases. Our job is to represent individuals across the country in overtime wage and hour claims. Our number one goal is to respect workers’ labor and to make sure they receive full and fair pay for the work they perform. Most people don’t know that there are federal and state laws to protect the overtime wage rights of workers. These laws are complex and employment law professionals are best equipped to evaluate the laws that apply to your specific situation. Allow our lawyers to take a look at your unique position and evaluate your potential right to collect unpaid overtime wages.

If you think your rights are being violated, contact us today for a free and confidential review by experienced overtime law attorneys.

One of the most commonly misunderstood aspects of overtime pay regulations is when mandatory overtime pay is necessary. These laws were specifically put in place to make sure that every United States employee receives additional payment after they have exceeded the federally determined threshold of forty work hours for the week. These laws are primarily enforced by the United States Department of Labor or private employment law attorneys who specialize in collecting unpaid overtime wages and work directly on behalf of the employees.  Federal overtime laws allow a successful claimant to recover attorney’s fees in addition to unpaid overtime, allowing private wage and hour lawyers to typically handle these claims on a contingent fee basis – giving workers access to highly skilled lawyers without having to anything unless and until their claim is successful. Knowing who can protect you when you have questions or a concern is an important part of understanding mandatory overtime pay.

One aspect of mandatory overtime pay that has confused many people is how it applies regarding holidays and weekends. The facts are that employers, under federal wage laws, are not required to pay their employees any extra pay when they work a Saturday, Sunday, or holiday unless they work more than 40 hours that week. Another confusing aspect is whether an employer can “force” employees to work overtime. In almost all situations, mandatory overtime can be forced by employers, but the employee must be paid a premium for this time, unless they are properly classified as “exempt“. The premium pay must equal a full hour plus an additional half hour of pay for each hour worked that exceeds forty hours in a work week. Some state wage regulations have added protections. For example, some states such as California require an employer to pay their employees an additional wage when they exceed eight and/or twelve working hours in a single day. As an employee you have many rights and understanding these rights is essential to ensure you are being paid properly.

When you have questions about mandatory overtime pay, we have answers. Contact us today and see if your rights to mandatory overtime pay are being respected.

Covered, nonexempt employees must be paid overtime pay at a rate of not less than one and one-half times their regular rate of pay after 40 hours of work in a workweek.  The key word is nonexempt.  Most employees (and employers for that matter) think that if employees are paid a salary, they are exempt from the overtime pay requirements and, therefore, not entitled to receive overtime.   That is simply not true.

The confusion happens because the most common overtime exemptions require that an employee be paid a salary ($455 per week minimum).  However, in addition to this salary requirement, the employee’s duties must also meet the requirements of one of these exemptions.  Just placing an employee on salary does NOT exempt the employer from the overtime pay laws unless the employee’s duties also meet an exemption’s requirements.

The following is an overview of the most common overtime exemptions:

Executive Exemption:

Salary Level:       $455 per week

Duties:

• Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;
• Who customarily and regularly directs the work of two or more other employees; and
• Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.

Administrative Exemption:

Salary Level:       $455 per week

Duties:

• Whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
• Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

Professional Exemption:

Salary Level:       $455 per week

Duties:

• Whose primary duty is the performance of work requiring knowledge of an advanced type (defined as work which is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment) in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction; or
• Whose primary duty is the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.

Computer Exemption:

Salary Level:       $455 per week or $27.63 an hour

Duties:

Computer systems analysts, computer programmers, software engineers or other similarly skilled workers in the computer field are eligible for exemption, but only if the employee’s primary duty consists of:

• The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
• The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
• The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or
• A combination of the aforementioned duties, the performance of which requires the same level of skills.

If you are a salaried employee and your job duties do not meet one of the above exemptions, you may not be exempt from the overtime pay laws.  If you would like us to evaluate your situation, please call us at 713-782-LAW1 (5291) or 1-866-559-0400 or submit your information using our convenient Case Evaluation form.

Per the labor laws, overtime is calculated based on a work week – not the pay period. Covered, non-exempt employees are entitled to overtime pay for all hours worked over 40 during a work week. A work week is a 7 day period established by your employer. It can start on any day of the week. For example, your employer’s work week may run from Monday through Sunday or it may run from Wednesday through the following Tuesday. In order to determine your overtime hours, you must know when your employer’s work week starts.

Your work schedule does not determine the work week. For example, assume your employer’s work week runs from Monday through Sunday and you work from Thursday through the following Tuesday. To determine your overtime hours, you would total the hours worked from Thursday through Sunday, when the work week ends. If the hours worked from Thursday through Sunday total more than 40, you will be entitled to overtime for that week. On Monday, a new work week starts so the hours you work on Monday and Tuesday count towards the new week’s total hours.

If you are paid twice a month, your pay period will usually include 2 full work weeks plus a few days of a third work week. The hours worked during the third work week would be considered regular time – assuming you do not work more than 40 hours during those few days. This means your regular time for the pay period could exceed 80 hours. For example, if you work 40 hours the first work week, 40 hours the second work week, and 8 hours for one day of the third work, your total hours for the pay period will be 88 hours but since you have not worked more than 40 hours in a work week, under the labor laws, overtime pay is not due.

In short, in order to determine the overtime hours you are due in a given pay period, you must add up the overtime hours for each work week that ends during the pay period.

If you think your employer is interpreting the labor laws on overtime incorrectly and would like us to evaluate your situation, please complete our online intake form. Our evaluation is free and confidential.

According to statements issued by the IRS, the number of Fair Labor Stand¬ards Act case filings involving misclassification challenges has nearly quadrupled since the late 1990s. It was up over 20% in 2010 alone. And the IRS says it plans to audit 6,000 businesses by 2013 to determine whether taxes, fines, overtime pay and penalties may be due. State agencies are planning to do the same. While employers should strive to avoid these penalties, many still misclassify workers as independent contractors when they are really employees under the law?

There Is No Simple Test: Employment law is complex and there is no one fact or factor that makes an independent contractor. Every case has to be examined and determined differently.

Most Cases Are Examined Using 3 Factors: When determining what kind or classification of worker you have, most cases can be examined using 3 factors. Asking yourself the following questions can begin the process of determining where you stand: 1) to what degree does the company direct or control how and when work is performed? 2) does the company direct or control the business or financial aspects of a worker’s activities? 3) what are the indications of both parties’ perception of their relationship? As you can see, the degree of control exercised over the worker is a key focus – the more restricted a worker is, the more likely they are to be classified as an employee.

Are Your Freelancers Truly Free? The FLSA provides an additional test to employers. Are your freelancers free to conduct business outside of your organization? Are they financially dependent on you and you alone for their income? These factors may also be considered in trying to determine whether a worker is truly an independent contractor – whether the examining eye is the IRS or a private wage and hour attorney seeking to recover unpaid overtime for misclassified workers.

One such newspaper is the Chicago Tribune, which has cut staff by about 50% since 2008. Now, former Tribune employee Carolyn Rusin is suing the newspaper over claims that they refused to pay her mandatory overtime for the hours she worked past 40 hours per week. Her attorney claims that she worked between 50 and 60 hours each week and was only paid the required time-and-a-half overtime pay five days in 2011.

Rusin, started as a freelancer and came on as a staffer in July 2010. Under the Fair Labor Standards Act, employees must be paid 150% salary for any time they work over 40 hours. But many professions have exemptions to the requirements and journalists are among those who may not always be entitled to overtime.

A journalist is exempt if they are considered to be a “creative professional” whose work involves “invention, imagination and talent.” Rusin’s work covering school board and meeting events involved physically going to meetings, interviewing sources and working in a traditional way. Therefore, her attorney contends, she is not among those exempted from overtime pay.

Beyond Rusin’s case, a class action suit is being pursued for all the reporters working for TribLocal, a localized web publication feeding content to 88 news websites and available to Tribune subscribers.

The lawsuit against Applebee’s is something restaurant bartenders and servers across the nation should be watching very closely. The case is another example of dining establishments across the country who do not want to be required to pay their workers the minimum wage, while employees feel that if they’re not earning tips for the duties they are performing, they should be making at least the minimum wage. Fortunately for employees, the Department of Labor agrees with employees in the Applebee’s case.

The bartenders and servers of Applebee’s claimed that they spend more than 20 percent of their time cleaning, keeping track of inventory, preparing silverware for diners, and stocking the serving areas. After a federal appeals court ruled that the lawsuit proceed, the National Restaurant Association and the United States Chamber of Commerce supported the appeal by Applebee’s.

If you find yourself like one of the more than 5.500 employees of Applebee’s who believe their rights are being violated under the Fair Labor Standards Act, contact us today.

The lawsuit against Skokie Maid cites that the company was not paying their workers for time spent at the office and the time it took commuting to their first job site. Further, their workers were not compensated for the first two weeks of work and days that were spent training. In some cases, employees saw less than the federal minimum wage rate. These workers were also working more than 40 hours per week, and did not receive the overtime pay they should rightfully receive as employees as in accordance with the Federal Fair Labor Standards Act.

In the case of Romeoville’s Super Maid, alleged violations in wage laws came on account of workers being paid a flat rate per house cleaned, regardless of the time that it took them to finish the job. As was the case with Skokie Maid, workers were also not paid for the time they spent traveling to job sites. The standard practices of Super Maid resulted in their workers receiving less than the Federal minimum wage rate.

These two Illinois companies are just another example of how wage laws are being violated and how workers are deprived of fair pay for an honest days labor. Industries that employ workers who are receiving low wages are historically more prone to violating wage laws. If you believe your rights under the FLSA are being violated, please contact us today.