Welders and metal fabricators tend to work long hours, but their employers don’t always keep track of the time they put in each week. As a result, many of these employees are being denied the overtime pay guaranteed by federal and state law. There are a number of other ways companies attempt to circumvent overtime laws and thereby cheat their workers out of the fair pay that the law requires. If any of these issues apply to you, it’s time to find out what your legal options are.
Your Right to Overtime
Federal and state labor laws require that most workers be paid overtime once they exceed 40 hours of work in a week. The primary federal law that concerns overtime is the Fair Labor Standards Act or FLSA. Under this law, non-exempt workers (those who are not excluded from the protections of the FLSA) have to be paid time and a half for overtime hours. That means their employers must compensate them at the rate of 1.5 times their regular pay rate.
As mentioned above, there are some exceptions to the law, so not all workers are entitled to overtime pay. It’s important to note, however, that these exceptions are narrow and employers bear the burden of proving they apply to their employees. In addition, some states have different rules which provide greater overtime rights and benefits to workers. These more beneficial overtime rules will always prevail wherever there is a discrepancy between them and the FLSA.
Common Overtime Issues Facing Welders and Fabricators
Despite working long hours in difficult conditions, welders and fabricators are frequently denied overtime pay. Department of Labor investigations and lawsuits have revealed several frequently used tactics to cheat these workers out of overtime. Here are some examples:
Misclassification as independent contractors. Welding and fabrication companies have been held liable for improperly misclassifying their employees as independent contractors. Independent contractors usually do not have to be paid overtime or extended other employment benefits, which creates a strong incentive for employers to label them as such.
But there are certain criteria that must be met before a worker can be categorized as a contractor. In general, the more control exerted over the worker (e.g. requiring the welder or fabricator to be on the job during certain hours or otherwise dictating when and how work is done), the less likely it is that the worker is an independent contractor.
Misapplication of an exemption. The FLSA allows a number of exemptions to the overtime requirements, including for workers who fall into these categories:
- Executive
- Administrative
- Professional
- Outside Sales
- Computer Employees
- Highly Compensated Employees
But an employee must meet two broad criteria before an exemption can be applied: he or she must (1) be paid a certain salary, and (2) have certain job duties that match federal regulations. Most welders and fabricators are unlikely to meet these standards, meaning they are not exempt and must be paid overtime.
Miscalculation of the overtime rate. Overtime is paid at the rate of 1.5 times a worker’s regular rate of pay. But this rate must take into account all forms of compensation the employee receives, divided by the number of hours worked. That includes bonuses, commissions, shift differentials, and more. Employers often fail to include these types of compensation when they calculate their employees’ regular pay rates. If the regular rate is incorrectly calculated, the overtime rate will be also.
Not tracking the employee’s hours. Employers are required to keep records of their employees’ hours to ensure they are being paid overtime after they exceed 40 work hours. When this doesn’t happen from one week to the next, workers can begin to lose substantial amounts of pay. It can be easy for welders and fabricators to lose track of their hours, considering the amount of work they do. But it’s a good idea to document your own time as much as you can to ensure you are not being denied your fair pay.
Automatic meal deductions. Employers frequently deduct 30-minute lunch breaks from their workers’ hours, even though many welders and fabricators work through these breaks or are “on call” during them. In order for an employer to deduct this lunch break, the employee must actually be relieved of all work duties. Automatically applied mealtime deductions usually raise red flags.
Asking workers to perform “off the clock” duties. Some employers will ask their welders or fabricators to do certain work tasks either before they officially begin working for the day or after the work day has ended. Although these extra tasks may individually only last for a few minutes, they can quickly add up to significant amounts of lost time. Employees should be compensated for all labor performed by their employers, and the time spent should be included in the total amount of weekly hours.
You May Be Entitled to Back Pay and More
If you are a welder or fabricator and your employer is illegally failing to pay you overtime, let The Lore Law Firm review your case. You may be able to claim back pay, liquidated damages in an equal amount, and lawyer fees and court costs. Send us the details of your situation by completing our confidential client intake form today.
