Once considered a staple of the American workforce, time and a half is under constant attack from employers who are determined to find ways around the law. Knowing how time and a half (overtime) pay should work is the responsibility of every employee. But protecting the right to time and a half requires an understanding of just how this pay system is being undermined. We take a look at why overtime is at risk and what you can do to secure the fair pay you deserve.
What Overtime Should Look Like
The primary law that deals with overtime pay in the United States is the Fair Labor Standards Act (FLSA). Under this law, most employees who work more than 40 hours per week are entitled to time and a half pay (or 1.5 times their regular hourly rate) for those excess hours. Nearly all workers are covered, along with salaried workers who earn below a certain amount ($35,568 annually). Even salaried workers who earn over that threshold are still entitled to overtime if their actual job duties don’t match federal regulations.
This is where overtime exemptions come in, and where many employers abuse the system to cheat their workers out of fair pay. Certain jobs do not require employers to pay their employees overtime if they meet both the salary and job duties tests. Here is an example of the criteria for one exemption, that of administrative work:
- The employee must be paid on a salary or fee basis at a rate not less than $684 per week;
- The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of his or her employer or the employer’s customers; and
- The employee’s primary duty must include the exercise of discretion and independent judgment with respect to matters of significance
As the criteria indicate, it’s not enough to pay a salary. The employee must have job duties that align with federal rules. These exemptions are strictly applied and the burden to prove that an employee meets them (and is therefore not entitled to overtime) always rests with the employer.
Why Time and a Half Is Declining
Employers try to skirt the law by paying their workers a salary and giving them meaningless job titles. Workers who are entitled to overtime have in many cases been labeled “managers” and told they are therefore not eligible for time and a half.
This sort of misclassification is rampant across many industries. A paper published by the National Bureau of Economic Research identified a number of phony managerial titles that operate only as excuses to not pay employees overtime:
- Food cart manager
- Price scanning coordinator
- Carpet shampoo manager
- Lead shower door installer
- Grooming manager
- Director of First Impressions (front desk clerk)
The same paper found that listings for salaried positions with (bogus) managerial titles are almost five times as common just above the $35,568 salary threshold as just below it. This is strong evidence that employers are trying to swindle their workers by making them think a salary and job title are enough to exempt them from overtime, when in reality their job duties are more akin to those of hourly workers. Remember, an employee’s actual job responsibilities matter much more than the title he or she is given.
Even job duties can be easy to manipulate. An employee can, on paper, be given certain tasks that line up with federal rules. Whether the worker regularly performs these duties is another matter, however. For that reason, some have proposed simply setting the salary threshold much higher (at least $90,000, by some proposals) since it is a far more objective measure of whether an employee is being fairly compensated.
However, courts have held to the duties test, like the one established for administrative workers, and have contended that a high salary undermines the importance of that standard. Business groups and conservative politicians also oppose any new measures that would adjust the rules in favor of employees.
What You Can Do to Protect Your Rights
For now, it’s important to recognize that whatever title or even salary you have is not determinative of your right to overtime if your job duties don’t meet federal standards. Has your employer given you a fancy title while keeping your core job duties the same? Are you concerned that you’re being cheated out of overtime? Connect with The Lore Law Firm’s national legal network today by filling out our confidential online client intake form.