10 Common Questions About Wages, Hours, and Overtime
Have you ever looked at your paycheck (or that envelope of cash your employer pays you “under the table”) and thought, “This can’t be right”? Have you ever wondered whether your employer’s “no breaks” policy or other workday policy is legal? If so, you are not alone. As Tampa overtime lawyers, we regularly field questions from employees about wages, hours and overtime pay. Here, we answer 10 questions based on common workplace scenarios:
My employer is making all employees work mandatory overtime this week? Can they do this?
Yes. Once you become an adult (18 years of age or older), the law typically does not regulate how many hours your employer can require you to work each day (there are some exceptions, for example, Department of Transportation regulations restrict the amount of hours that truck drivers work). However, if you are required to work more than forty hours in a workweek, you may be entitled to receive overtime pay at a rate of 1.5 times your regular rate of pay.
I am a salaried employee. Does that mean I’m not entitled to receive overtime pay?
Not necessarily. Being a salaried employee does not always mean you are not entitled to receive overtime pay. The Fair Labor Standards Act (FLSA) governs who is entitled to receive overtime pay. Employees who are non-exempt from the FLSA are required to be paid overtime. Exempt employees are not covered by the FLSA and are not entitled to overtime. The industry you work in, the amount you earn, and the job duties you perform will determine whether you are a non-exempt employee and entitled to receive overtime pay. A Tampa overtime lawyer can walk you through this analysis and determine whether your employer is complying with the law.
Can my employer make me work on my lunch break?
Yes. If you are at least 18 years of age or older, the law generally does not require that your employer give you a lunch break or any other kind of break for that matter. However, if you are required to work on your lunch break, your employer must keep you “on the clock” and count your lunch break towards your total time worked for that day.
I am an undocumented worker. Am I allowed to bring a claim against my employer for unpaid overtime/unpaid wages?
Yes. The FLSA protects all workers whether they are in this country legally or not. It is not uncommon for an employer to intentionally and knowingly violate the law by failing to pay undocumented workers overtime because the employer assumes the employees will not complain out of fear that the government will find out they are working here illegally. The FLSA tries to prevent employers from taking advantage of undocumented workers by providing protection to all employees.
My employer does not pay overtime for holidays or weekends. Can they do this?
The law does not require an employer to pay overtime for work performed on holidays and weekends. Overtime pay is required for any non-exempt employee who works more than 40 hours in a given workweek.
My employer was paying $10.00 per hour to all of its employees. They told us that starting next month they are reducing our pay to $8.05 per hour. Is this legal?
Yes. The minimum wage in Florida is currently $8.05 per hour. As long as your employer is paying you at least the minimum wage rate, they are following the law. Unfortunately, employers are allowed to reduce employees’ pay as long as the employee is making at least the minimum wage.
My employer has been saving up my overtime and allowing me to use this time as paid-time off (“comp time”). Is this legal?
In general, your employer is not allowed to accrue your overtime and allow it to be used as comp time. However, if you work for a government agency, your employer is allowed to accrue your overtime as comp time. If you work in the private sector and are a non-exempt employee who is entitled to receive overtime, you must be paid overtime in the form of money.
I receive an IRS Form 1099 at the end of the year for the company I work for. Is it true that I am not entitled to be paid overtime because I am an independent contractor?
If you are an independent contractor, you are not entitled to be paid overtime because the overtime laws only apply to employees. Independent contractors are not employees under the law. However, employers will often incorrectly classify their employees as independent contractors to avoid having to pay their share of taxes and overtime to their employees. Whether you receive an IRS Form W-2 or an IRS Form 1099 does not determine your status as an employee or independent contractor., nor does the label that you employer gives you. There are several factors that the law takes into consideration to determine if you are an employee and entitled to the rights given to employees. An experienced Tampa employment attorney can review your work situation and determine your legal status.
My employer was paying me in cash and didn’t record my hours. How do I prove I wasn’t being paid overtime?
The law requires that your employer keep a record of the hours you worked, including overtime hours, and the amount that you are being paid. Usually in cases where the employer is paying its employees in cash and not paying overtime, the employer also is not keeping records of pay or hours worked because the employer does not want anyone to uncover its illegal conduct toward its employees. The law takes into account the fact that most employees do not keep their own records regarding their hours worked. The FLSA allows an employee who does not have records to rely on his own testimony to help prove an overtime pay claim. If you believe your employer is not paying you overtime correctly, it is a good idea to keep a record of the hours you worked each day and how much you are being paid, and reach out to a Tampa overtime lawyer with experience in proving failure-to-pay-overtime cases.
I complained to my employer because they were not paying me overtime correctly and I was fired. Is there anything I can do?
Absolutely. The Fair Labor Standards Act (FLSA) prohibits an employer from firing an employee for complaining about not being paid overtime. This is retaliation and it is illegal. If your employer fires you for complaining, you may have a separate claim for retaliation, in addition to your claim for failure to pay overtime. You may be entitled to additional remedies such as reinstatement, lost wages and liquidated damages.
If you don’t know the full extent of your rights in the workplace, it is easy for an employer to take advantage of you. Having an experienced Tampa overtime lawyer on your side levels the playing field. If you suspect your employer has violated your rights with regard to wages, hours or overtime, contact us. Use the email form on this page or call Florin Gray, at (727) 254-5255, to schedule a no-charge consultation.