Tampa Wage: Are You Being Fully Compensated For Your Work?
Federal and state laws govern the payment of wages and overtime. If you are like many Florida employees, you assume that your employer knows the law better than you do, and that your employer is complying with the law and is accurately paying you what you are owed. As experienced Tampa wage and hour lawyers Florin Gray, we can tell you that assumption often is incorrect. Here are some common situations where employers (knowingly or unknowingly) violate the law in paying their employees:
(1) Fluctuating Workweek Method of Payment
Non-exempt employees (employees to whom the overtime laws apply) who have fluctuating hours are permitted to be paid a fixed salary. This is called the “fluctuating workweek” method of payment. In order for the fluctuating workweek method to be in compliance with federal law, the following must apply:
- The employee must be paid a fixed salary.
- The employee and the employer must have a clear understanding that the fixed salary is compensation for all hours worked no matter how many hours are worked in a particular week.
- The employee’s hours must fluctuate from week to week.
- The salary must be high enough that the employee’s hourly rate never falls below the minimum wage rate.
If all these conditions are met, the employee may be paid an overtime rate of half-time (0.5) the employee’s hourly rate during the weeks the employee works more than forty hours.
The fluctuating workweek method often is used for employees who work seasonal jobs, where the number of hours worked varies greatly depending on the season. The fluctuating workweek method is not always easy to understand and is often misused by employers. Most commonly, employers will tell an employee that he is not entitled to receive overtime pay if he is being paid pursuant to the fluctuating workweek method. This is not true. Even under the fluctuating workweek method, an employee is entitled to receive overtime pay.
(2) Tipped Employees
Employees, who customarily receive at least $30.00 a month in tips, are considered to be “tipped employees.” Most tipped employees work in the hospitality industry (servers, bartenders, etc.) and rely on tips as their primary means of income. Tipped employees are required to be paid a minimum cash wage of $5.03 in Florida. Tipped employees must receive enough money in tips to meet the threshold requirement of being paid at least $8.05 per hour (the minimum wage in Florida). This means that employers may claim up to $3.05 per hour as a tip credit. A tip credit is the amount an employer is allowed to credit towards its minimum wage obligation. Tips are the property of the employee. An employer is not allowed to use an employee’s tips for any purpose other than credit towards the employer’s minimum wage obligation. If an employee’s tips do not add up to $8.05 per hour, the employer must make up the difference.
An employer is allowed to pool tips or require a group of tipped employees to share in the combined amount of tips received by all the employees in the group. However, only tipped employees may share in the pool. Managers and other employees who do not customarily receive tips may not participate.
(3) Employees Paid Bi-Weekly
Many employees are paid on a bi-weekly basis (every two weeks). However, for non-exempt employees, the requirement to pay overtime for any hours worked over forty hours per week still applies. Some employers incorrectly pay overtime only on the hours worked over eighty (80) hours per pay period and this is illegal. For example, if an employee works thirty-seven (37) hours in one week and forty-two hours (42) hours the next week, the total number of hours worked by the employee is seventy-nine (79) hours. Although the employee did not work a full 40 hours in the first week, the employee is still entitled to receive overtime for the two (2) hours worked over forty hours in the second week.
(4) Day Laborers
Day laborers are workers who are hired for a day’s work with no promise of future work. At the end of the day, they are paid for the work they have done for that day. A day laborer must be paid the minimum wage rate of $8.05 per hour, even if only employed for one day. A day laborer must be compensated for all work activities including, but not limited to: time spent in training, doing repair work, and traveling from site to site.
(5) Work Activities Under the Fair Labor Standards Act (FLSA)
Employees often underestimate just how much of their day is spent doing compensable work activities (i.e., activities that require payment from their employer). Some employers intentionally keep their employees in the dark about what activities are actually compensable so that they can cut corners and save money. Here are some of the activities that employers often classify as “off the clock,” but are actually compensable:
- Rest periods between 5 and 20 minutes;
- Travel from job site to job site;
- Participating in training;
- Working through meal periods; and
- Performing work from home.
It can be confusing trying to determine whether you are being paid fully and accurately, as required by law. Our experienced Tampa wage and hour lawyers can review your situation and make sure you are getting all you have earned. Contact us by clicking “Free Consultation” above, engage in a live chat, or call Florin Gray at (727) 254-5255