Wage and Hour Disputes

Overtime and Wages

You deserve to be paid for your work. If you work through lunch, you are still on the clock, whether or not your employer allows it. If you spend an hour at work preparing to start your shift, you should be paid for that as well.

Under the federal Fair Labor Standards Act (“FLSA”), you are owed at least a minimum wage for every hour you work and, depending on the circumstances, you may also be entitled to compensation for working overtime. Overtime is any hour worked by a nonexempt employee in excess of 40 hours per week.

Being a salaried employee does not automatically mean that you are exempt from being paid overtime. Our lawyers have helped clients with minimum wage claims, overtime claims, and claims based on employees being unfairly and illegally classified as “exempt” employees to whom overtime is not owed. Even if you have been told you are exempt from receiving overtime, the legal reality may be different based on your job duties.

Overtime and minimum wage cases can be pursued for up to three years after the work was completed and the wages were earned. In some cases, where an employer’s failure to pay wages is considered willful, the employer can be liable for as much as twice the amount originally owed.

If you think you haven’t been compensated for all the time you’ve worked, contact us. You worked hard for those wages and do not want to miss the opportunity to collect what is rightfully yours.

Exempt v. Nonexempt Employees

Many, but not all, employees are entitled to overtime pay for all hours worked in excess of 40 hours per workweek. The employees who are not entitled to this pay under the Fair Labor Standards Act are known as exempt. Frequently, the most complicated aspect of Wage and Hour Law is the analysis regarding which employees are (and which employees are not) exempt.

It is critical that you do not simply rely on your employer’s declaration that you are – or are not – eligible for overtime. Employers often classify employees who are close to the line or in gray areas as exempt because it is almost always to an employer’s benefit to do so.

An individual’s job title alone is insufficient to determine whether or not their employer is required to pay them overtime wages. The legal analysis requires a more detailed look at what an employee’s job responsibilities actually are to determine if the work that employee is doing is properly classified as exempt.

It is possible for an employee to be owed overtime wages even if that employee is:

• Considered a manager or supervisor by their employer;
• Paid a salary; and/or
• Classified as an independent contractor at the start of their employment.

The exempt vs. non-exempt determination requires legal analysis beyond these factors. Contact us if you believe you are a non-exempt employee and are owed overtime pay by your employer.

Common Exemption Issues

Exemptions from overtime laws can be difficult for employees to figure out. This area of the Fair Labor Standards Act has a lot of rules and counterintuitive requirements. Here are some basic facts:

To be an exempt employee under the Fair Labor Standards Act, you must make at least $35,568 ($684/week). If your salary is less than that–regardless of your job duties–you are probably not exempt.

The Fair Labor Standards Act exemptions generally fit into the following categories:

• Executive
• Administrative
• Professional
• Computer Employees
• Outside Sales
• Highly Compensated ($107,432 as of July 1, 2021)

Determining whether your specific job is exempt is often more complicated than it appears. You may qualify for overtime even if you think your job fits an exempt category. You also may be excluded based on something that you would have never considered.

For example, individuals who drive work vehicles that have a gross vehicle weight rating in excess of 10,000 lbs. are not eligible for overtime. This exemption is meant to apply to long-haul trucking, but it also applies to many construction workers and delivery drivers. Even a large pickup truck can exceed a gross vehicle weight of 10,000 lbs.

On the other hand, while it would seem that an administrative assistant would automatically fall into the administrative exemption, that is not necessarily true. Many administrative assistants do not have the necessary discretion or responsibilities required for them to be classified as exempt employees. If, for example, an administrative assistant answers phones but does not make any decisions about those calls, their work is probably not exempt from overtime.

Similarly, the computer employee exemption is largely focused on the development of software. The vast majority of information technology employees, computer technicians, and other employees in technology-focused positions are properly classified as non-exempt and entitled to overtime pay under the law.

Common Wage Theft Issues

Non-exempt employees must be paid for every hour that they work. However, they are often shorted on their checks through timecard manipulation or illegal polices. For example, if you are asked to do work off the clock, you are likely owed unpaid wages.

Your employer must also pay you for “unapproved” overtime under most circumstances. Employers often insist that they are not required to pay for these hours. That is false.

Try to answer some of the questions below:

• Does your employer track your work from home hours?
• Does your employer adjust your timecard after allowing you to clock in early?
• Does your employer ask you to finish work after you get home?
• Does your employer ask you to get ready for work before you clock in with a special uniform or equipment?
• Do you come in early, stay late, or work through your lunch break without compensation?

Allow us to evaluate your situation and determine whether you are owed just compensation for your work.

Service Industry Concerns and Tipped Employees

If you worked in a tipped industry, you are particularly vulnerable to certain types of abuse under the FLSA.

If you work in a restaurant, bar, or other establishment where you are responsible for a table, it is not legal for your employer to charge you for walk-out tables.

If the restaurant or bar where you work pools tips, managers cannot be part of the tip pool.

Employees must make at least the state minimum wage after their tips are added to the tipped minimum wage. This means that no one in Virginia can make less than $7.25 an hour as a tipped employee. In the District of Columbia, no one can make less than $8.25 an hour as a tipped employee.

All of the above issues are violations of the FLSA and you should contact our lawyers if your employer is engaging in any of these activities.

Retaliation

Your employer cannot retaliate against you for seeking your wages protected by the FLSA, including overtime. Retaliation for actions you’ve taken to seek payment for your work, such as asking for overtime, calling a lawyer, or filing a legal action, are illegal and you might have a valid claim for FLSA retaliation.

Click here to learn about Virginia Wage and Hour Laws

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Click Here to Learn about D.C. Wage and Hour Law