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Overtime Pay - Frequently Asked Questions

  • What is considered overtime?

    The Fail Labor Standards Act ("FLSA") governs minimum wage and overtime violations. It is considered the basic wage and hour law giving rise to most lawsuits against employers. The FLSA was enacted in 1938 and President Franklin D. Roosevelt proclaimed that the FLSA is intended to ensure that to all "able-bodied men and women a fair day's pay for a fair day's work." Subject to very complicated set of exceptions, the FLSA guarantees workers a minimum wage rate and overtime pay for hours worked in excess of 40 hours in a week at a rate of one and one-half times they regular rate of pay. It is important to be keep in mind that many states, such as Florida, have also enacted their own set of wage and hour laws with notable variations from the federal requirements.

  • How to calculate overtime pay?

    Covered, nonexempt employees must be paid overtime pay at no less than one and one-half times the employee's regular rate of pay for hours worked in excess of 40 in a workweek.

    The regular rate of pay on which overtime pay is calculated includes remuneration (or pay) for employment, and certain payments made in the form of goods or facilities customarily furnished by the employer.

    An employee's earnings may be determined on a piece-rate, salary, commission, or some other basis, but in all cases the overtime pay that is due must be computed on the basis of the regular rate. The regular rate is the average hourly rate calculated by dividing the total pay for employment (except the statutory exclusions) in any workweek by the total number of hours actually worked.

    In general, hours worked includes all time an employee must be on duty, or on the employer's premises or at any other prescribed place of work. Also included is any additional time the employee is suffered or permitted (i.e., allowed) to work.

    A workweek is a fixed and regularly recurring period of 168 hours, or seven consecutive 24-hour periods. It may begin on any day of the week and at any hour of the day. An employee's frequency of pay (e.g., bi-weekly, semi-monthly, monthly) has no impact on this fixed workweek. Each workweek stands alone; averaging hours worked over two or more workweeks is not permitted by the FLSA.

  • Are salaried employees entitled to overtime pay?

    There are various and common mistakes and misconceptions about who is and is not entitled to overtime pay. While the body of law surrounding this area is extremely complex, and there are substantial limitations, depending on the circumstances, it is incorrect and dangerous to conclude that overtime pay is not required because:

    • A work product or policy provides for all work to seize by 5:30pm
    • An employee waived certain requirements in writing
    • Employee is paid above the minimum wage
    • Employee agreed to substitution of overtime pay with additional vacation or personal days
    • Employee performed the work from home or another remote location
    • Employee is paid a SALARY and is therefore not entitled to overtime

    Other factors that determine whether an employee is entitled to overtime often require careful analysis of various exemptions, determination of whether a worker is in fact considered an employee, if the employer or entity is engaged in commerce or the production of goods for commerce, employer revenue, determination of compensable time and analysis of various other important considerations.

  • Which employees are exempt from overtime pay?

    An exempt employee is not entitled to overtime pay under the Fair Labor Standards Act. While there are many different types of exemptions, an employee should always start with the presumption that she or he is entitled to overtime pay until determined specifically exempt. The FLSA assumes than an employee is nonexempt and entitled to overtime pay and it is the employer's burden to prove that an employee is exempt from the overtime requirements of the FLSA. Common overtime and/minimum wage exemptions include but are not limited to:

    • Agricultural Exemption
    • Workers employed by seasonal amusement or recreational establishments
    • Employees employed in certain administrative, executive or professional capacity, such as elementary or secondary school teachers, academic administrative personnel, outside salesman and many others, such as employees of certain computer occupations
    • Highly Compensated Employees
    • Practitioners of law or medicine if certain conditions are met
    • Employees subject to Motor Carrier Act Exemption
    • Employees of industry specific exemptions if certain conditions are met, such as: certain employees of radio and television stations and motion pictures, taxicab drivers, employees of railroad and air carriers, employees in certain forestry or logging operations and various others.
  • Are part time employees entitled to overtime pay?

    The Fair Labor Standards Act requires that overtime wages be paid to covered employees in excess of 40 hours worked per workweek absent applicability of certain exceptions. It is important to always consider applicable state law, which may have more stringent requirements in general or under specific situations. For example, Florida Statutes 448.01 requires extra pay amount for certain manual workers, while federal law permits nursing homes and hospitals to agree with their employees to in advance that no overtime will be owed unless more than 80 hours are worked in a 14-day period unless more than eight hours per day is worked if 8/80 system is utilized. These examples illustrate some of the sheer complexity of the qualifications governed by both state and federal law.

  • What is the overtime pay rate?

    The FLSA generally mandates payment of one and one-half times an employee's regular rate for hours worked in excess of 40 in a workweek.

  • What should I do if I am not being paid overtime?

    An employee who believes there has been a violation of minimum wage and overtime pay should immediately consult with an experienced employment law or wage and overtime attorney, to prevent lapse of statute of limitations and applicable state and federal deadlines. Put simply, there is a limited period of time in which such a claim or defense can be brought or it will be forever barred, regardless of its merits. In addition, there may be other applicable notice provisions, causes of action and preservation of evidence, which could apply and which must be met or preserved in order to bring a successful claim. Therefore, it is important to obtain a legal opinion without delay if an employee wishes to preserve the right to file suit by immediately consulting with an employment attorney regarding his or her claim. The employee (or an ex-employee) should preserve and retain any and all documentation and materials that could evidence an overtime violation, even if the employee believes the information is not likely to be relevant in determining his or her prospective claim.

  • Is it overtime pay taxed?

    As a general rule, an employer is required by law to pay one and one-half times the hourly rate for any time exceeding 40 hours in a workweek. While an employee will receive an hourly bonus for working overtime, she or he must pay taxes on these wages, likely to exceed the amount withheld from employee's paycheck. However, nothing herein is intended to provide tax advice. Given the specificity of individual circumstances, a person having questions regarding tax implications involving overtime and minimum wage, should immediately consult with an appropriate tax professional as necessary to ensure understanding, compliance and maximum beneficial taxable outcome.

  • I just learned about overtime law. My previous employer never paid me overtime. Can I still file a claim?

    There are various factors that govern whether an employee is entitled to overtime pay. Important considerations in ascertaining qualification for overtime pay include analysis of time of occurrence, whether an employee was exempt from overtime payment, factors pertaining to employer's business, such as its size, revenue, number of employees, type of work performed, employer and employee agreements and various other matters depending on the specific circumstances of the case. If you believe that you are owed overtime pay there is a specific time period within you must bring your wage and hour claim and we urge you to act fast and contact an employment law or wage and overtime.


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