When disaster strikes, communities across the country rely on disaster recovery and clean-up workers to get their cities and neighborhoods back to normal. These individuals tend to put in long hours under extremely stressful and sometimes traumatic or dangerous situations. Employers often take advantage of these exigent circumstances by refusing to pay their employees overtime. Are you in the disaster recovery or clean-up industry? Are you working extensive hours but you’ve been told you’re not entitled to overtime? Contact us to make sure you aren’t being denied the compensation you deserve.
Examples of Disaster Recovery and Clean-up Workers
These are a few examples of the different types of employees who are called upon to assist after a major disaster:
- Construction crews
- Demolition crews
- Restoration, remediation, and cleaning workers
- Security guards
- Hazardous materials workers
- Utility workers, e.g. linemen
- Truck drivers and delivery workers
A diverse array of workers such as these may be called upon to do the work needed to get life back on track. They could be on duty or on call for days or even weeks or months at a time after a natural disaster, terrorist attack, or other major catastrophe. Long hours and few breaks are common. But the extreme circumstances involved don’t relieve an employer of making sure these workers are compensated for their overtime.
What are My Rights to Overtime?
Most employees who work more than 40 hours in a week have to be paid overtime under the Fair Labor Standards Act, or FLSA. The FLSA is the primary federal law that governs overtime, although state and local laws may provide more generous worker rights which would apply instead. Overtime is sometimes called time and a half because the employee must be paid 1.5 times his or her regular pay rate for each hour over 40 in a work week.
What are the Different Ways These Workers are Denied Overtime?
If you are one of the above types of employees or someone else in the disaster recovery and clean-up business, it’s important that you understand the various ways employers frequently deprive their workers of overtime pay. Examples include:
Claiming the hourly rate is high enough to exempt the worker. Your employer may pay you a fairly high hourly rate and then claim that this somehow exempts you from claiming overtime. The company may tell you that since you’re already paid a high enough wage, you aren’t eligible for overtime.
Unless someone is employed doing computer programming, that worker is almost certainly guaranteed overtime regardless of how high the hourly pay rate is. Also, while there are exemptions in the FLSA based on a worker’s profession, there is no exemption for hourly workers performing blue-collar, manual, clerical, and/or administrative work.
Paying the worker a day rate. Disaster workers are sometimes offered exceptionally high day rates which are designed to extract long hours from them to complete the job. Although day-rate pay is legal, it does not exclude an employee from overtime. The long hours required to manage and recover from the disaster will eventually add up to over 40 in a week. When this occurs, day-rate pay is not full compensation for all hours worked. Overtime must be calculated and paid.
Misclassifying the employee as an independent contractor. Employers frequently misuse the independent contracting system by claiming that actual employees are contractors. This relieves the employer of certain duties, including paying overtime. But merely calling a worker an independent contractor (or having them sign a contract) is insufficient because there are certain legal criteria that must be met. As a general rule, if a disaster relief or clean-up company tells you what to do and how, when, and where to do it, you are more likely an employee and the company is your employer. That means you are entitled to overtime pay.
Asking the employee to waive his or her right to overtime. An employee cannot give up his or her right to overtime, and an agreement to waive overtime is of no legal effect. It doesn’t matter if the employee was made fully aware of his or her right to overtime yet voluntarily chose to give it up by signing an agreement. Even if you’ve signed a document to this effect, you can recover back overtime pay.
Refusing to pay for “on-call” time. Some disasters necessarily involve a great deal of waiting time. A relief or clean-up worker may be assigned to a job site but not have any actual work to do for several hours. Employers often refuse to pay for this time, meaning the hours spent “on call” are not included in the employee’s total weekly hours (which may otherwise exceed 40). However, if you are required to be on the job premises and are not free to simply leave at any time, you must be compensated and the hours spent waiting must be included in your weekly total.
Calling the worker a “volunteer.” Volunteer work is a great way for people with certain skills (e.g. construction workers) to give back to their communities after a disaster. But if you are an employee of a relief or clean-up company, and you are asked by your employer to do “volunteer” work that is essentially the same thing you are normally paid to do, then you must be paid for it. This is especially true if said work benefits your employer. The time spent should also be included in your total weekly hours.
Make Sure You Know Your Rights – We Can Help
The above are just some examples of how employers in the disaster relief and clean-up industries fail to pay their employees overtime. Do any of the above sound similar to your situation? Are you unsure whether you deserve overtime pay? Connect with The Lore Law Firm today by completing our confidential online client form.