Frequently Asked Questions

wrongful dischargeThe Shavitz Law Group, P.A. has helped thousands of employees in a variety of contexts, including wrongful discharge, and continues to do so today. Many of our clients, however, have specific questions about their right to overtime compensation when they’ve worked more than Forty (40) hours per week in a single workweek.

Below are common questions that we receive from our clients, along with answers about how most employers are required to pay workers for their overtime hours worked or what to do in the case of wrongful discharge. This list is not all encompassing, so remember, if you have a specific question about a job you’ve worked at within the past three (3) years, contact us today for a personalized evaluation of your circumstances.

(1) What am I entitled to recover if I bring a claim and win?

You are entitled to recover the unpaid overtime wages your employer failed to pay for either the two (2) or three (3) year period dating back from when your Complaint was filed in Court, and the Judge in your case has the discretion to issue an award of double damages (also known as liquidated damages) if certain legal conditions are met.

(2) What if it has been a long time since I worked there?

The Fair Labor Standards Act permits employees to seek the recovery of overtime wages earned at jobs they’ve worked at within the past two (2) to three (3) years. In this regard, the law generally allows workers to go back two (2) years from the date a complaint is filed in court, and an additional, or third, year is permitted if the employer willfully failed to pay overtime wages.

Only the filing of a complaint in Court “stops the clock,” so until that action is taken, your rights can be reduced with each passing day. Internal complaints filed with an employer, and complaint submitted to the U.S. Department of Labor, do not increase the time you have to protect yourself nor do they “stop the clock” from running. As a result, if you don’t act on your rights, you may lose them, so contact us today if you believe you are owed wages from one of your jobs.

(3) If I complain to my employer about not receiving overtime wages, can my employer fire me or take other negative actions to retaliate against me?

No. The Fair Labor Standards Act provides that an employer may not retaliate against any employee who seeks to protect their statutory rights to minimum and overtime wages, and if an employer is proven to have engaged in retaliation, they may be liable for damages for lost wages and other relief.

(4) What if I am afraid of my employer finding out about me?

The Shavitz Law Group, P.A. will not discuss your case with anyone without your consent, and until you decide to authorize to file a Complaint in Court on your behalf, no one will no that you have spoken with us. Importantly, all conversations and communications with attorneys and staff members of our firm are normally protected by attorney-client privilege.

(5) What if I am paid a salary or the same amount every week?

It is not uncommon for employers to classify many workers as “exempt” simply by paying them a salary and telling them that their salary prevents them from being eligible for overtime compensation. However, a salary alone DOES NOT mean you are necessarily exempt from overtime. The Fair Labor Standards Act considers your actual job functions and responsibilities when determining if you are truly “exempt” or “non-exempt.” Exemptions from overtime compensation are often legally complicated, so if you were paid a salary at any job within the past three (3) years, contact us at the Shavitz Law Group, P.A. for a free consultation.

(6) What if I’ve been paid the same hourly pay rate for all of my hours worked, even those over Forty (40)?

Under the Fair Labor Standards Act, covered employees are entitled to receive time and one-half of their regular hourly rate of pay for all hours worked in excess of Forty (40) per week, so if you were only paid straight-time wages for overtime hours you worked, you may be owed the additional “half-time” that you weren’t paid.

(7) What if my boss told me I am “exempt” from overtime?

Many employers fail to pay overtime wages required by the law simply by saying that they believe an employee is “exempt.” However, unless specifically exempted from the Fair Labor Standards Act’s requirements by one of the law’s narrow, statutory “exemptions,” most employees must receive overtime pay for all hours worked in excess of Forty (40) per week. The specific responsibilities of your position, and the “primary duty” you perform at your job, help determine whether you should be classified as “non-exempt” and thus paid overtime compensation. The FLSA’s exemptions are complex, so if you were told you are “exempt” but have a question about whether you are entitled to overtime compensation, contact us at the Shavitz Law Group, P.A. for a free consultation.

(8) What if I am a supervisor or manager?

Your job title alone does not determine whether or not you are entitled to overtime pay. Many employers classify workers in titles such as: crew leader, foreman, property manager, construction superintendent, head cook, or even assistant manager and do not pay them overtime wages, but the work these employees perform is often not very different from the work done by the rest of the line employees at their job. The Shavitz Law Group, P.A. can help review your job responsibilities to see if you have been paid properly, so contact us today for further assistance.

(9) What if my employer classifies me an “independent contractor?”

Just because an employer designates you or other workers as an “independent contractor” doesn’t mean that you aren’t an “employee” within the meaning of the law. Employers often misclassify their workers to escape paying taxes or to avoid insurance costs, but there are a number of important factors that ultimately determine whether you are an “employee” or an “independent contractor” under the law based upon the economic realities of your working relationship including:

  • Who set your hours and daily work schedule?
  • Who determined your job duties?
  • Did you work at your employer’s office or job site every day?
  • Who paid for the tools and equipment used in carrying out your work?
  • Do you perform work for multiple Companies at the same time?

If you have questions about whether you have been misclassified as an independent contractor, contact us today and let the Shavitz Law Group, P.A. provide you with a free consultation to review the facts and circumstances of your situation.

(10) What if my employer did not issue me a Form W-2 for taxes, but rather issued me a Form 1099, may I still pursue my unpaid overtime?

Some companies who don’t take taxes out of your paycheck and simply give you a 1099 at the end of the year (instead of a W-2) may tell you that you are an “independent contractor” as a result. However, that classification may be incorrect. Whether someone is an “employee” or an “independent contractor” is determined by the facts of the working relationship, not merely a label. Thus, after consideration of the relevant factors (please refer to Question #17 above), Courts find many workers to be “employees” within the meaning of the law who are entitled to overtime wages for hours worked above Forty (40) per week.

(11) What if I worked “off the clock”?

If your employer has accepted the benefits of your work and had (or should have had) reason to know that you were working “off the clock,” you may be eligible to recover unpaid overtime wages for those hours if you were worked more than 40 hours in an week within the past three (3) years. It does not matter whether an employer specifically told you to clock out and finish your work because you did not finish on time. Rather, if you worked the time, let the Shavitz Law Group, P.A. evaluate if we can you help recover wages you may be entitled to.

Courts have awarded “off-the-clock” pay for employees:

  • Maintaining equipment;
  • Staying late after normal shifts without “putting in” for overtime;
  • Doing job-related paperwork at home;
  • Making and responding to job-related telephone calls;
  • Working through meal periods; and
  • Many other activities that vary across industries.

(12) What if my employer didn’t know I worked off the clock?

Your employer can be held responsible for paying you for overtime hours worked regardless of whether or not the Company specifically watched what you were doing on a particular day. Under the Fair Labor Standards Act, employers must keep detailed time records of the hours their non-exempt employees work each week.

(13) What if my overtime hours were not approved in advance?

Under the Fair Labor Standards Act, employers are not permitted to accept the benefits of your hours worked without properly compensating you for all hours you work in excess of Forty (40) in a workweek. This means that most employers must pay you for your overtime hours even if you didn’t specifically first obtain permission to work those hours.

(14) What if I can’t prove the amount of time spent working off-the-clock?

Employers are required to maintain accurate time records of the hours their employees work. If an employer does not maintain complete time records, the employee is entitled to prove the extent of their hours worked based on a good faith, realistic estimate of the time worked. As a result, the law does allow you to estimate the number of hours you worked in a particular workweek even if you don’t have a diary or other record of every such hour, and the employer will have the burden to challenge how realistic your knowledge or estimate is. Thus, as long as you are honest, you can likely recover unpaid overtime wages the worked within the past three (3) years – because you earned it.

(15) How do I know what counts as a “work” time?

Many Courts have held that work time under the Fair Labor Standards Act includes all time spent performing job-related activities which:

  • Genuinely benefit the employer;
  • The employer “knows or has reason to believe” are being performed by an employee; and
  • The employer does not prohibit the employee from performing.

These can include activities performed during “off-the-clock” time, at the job site or elsewhere, whether “voluntary” or not.

(16) What if I don’t know my overtime rate?

Overtime must be paid at time and one-half the “regular hourly rate” for every hour an employee works over Forty (40) hours in a workweek. For employees whose normal pay is not based on an “hourly” rate, their regular rate requires a determination of what the applicable regular rate is, which is usually calculated by dividing the total weekly wages by the total number of hours worked in that workweek. Certain types of incentive, and production, pay such as commissions and bonuses, may also need to be factored into your “regular rate” when calculating the overtime rate.  The Shavitz Law Group, P.A. can help you determine your proper overtime rate, so contact us today for further assistance.

(17) If I am paid a “piece rate” or “day rate” (an amount of money per task/day worked), do I have a right to overtime pay?

Under the Fair Labor Standards Act, non-exempt employees are entitled to receive time and one-half wages for hours worked in excess of Forty (40) per week regardless of whether an employee is paid on an hourly basis, a salary, by the piece, by a daily rate, or otherwise.

(18) Is my employer permitted to make deductions from my hours worked for meal/lunch breaks even if I do not actually take these breaks?

No. Under the Fair Labor Standards Act, employers typically may only deduct time for break periods which are at least Twenty (20) minutes long—and only if these breaks are actually taken. This means that if your employer schedules daily breaks, or automatically deducts Thirty (30) minutes or One (1) hour per day, but you do not actually take such an uninterrupted break free from performing your job duties, you may be entitled to unpaid overtime wages for any week in which you worked more than Forty (40) hours. If you have worked through your breaks within the past three (3) years, contact us to determine if you may be entitled to unpaid overtime wages.

(19) What if I travel from one place to another throughout the course of my work day but my employer only counts my time at each job site?

Employees are generally entitled to be compensated for work time spent traveling time between job sites during the work day.

(20) What if I travel for work in my own vehicle?

Whether you use your own car, or your employer’s vehicle, your commute time to and from work at the beginning and end of each work day normally is not compensable for overtime purposes.  However, if you are picking up or dropping off a company vehicle at your employer’s location or any other location, your work hours start at that time.  Similarly, time spent performing work related duties DURING YOUR COMMUTE may be considered hours worked for the purposes of overtime pay. Examples of compensable work time under the Fair Labor Standards Act include providing transportation for other employees to and from the worksite, work-related calls to your employer or your employer’s suppliers and customers, picking up supplies or equipment on the way to a jobsite, and stopping by the office/place of business to receive instructions or pick up supplies on the way to the job site. To evaluate whether you are owed overtime compensation for time spent traveling in your job, contact us at the Shavitz Law Group, P.A. today for a free consultation.

(21) Can my employer combine my hours worked in different weeks to avoid paying me overtime hours I worked in One (1) week?

No. Overtime is determined on a workweek basis. An employee’s workweek is a fixed and regularly recurring period of 168 hours (seven (7) consecutive twenty-four (24) periods). Averaging of hours over two (2) or more weeks is not permitted under the Fair Labor Standards Act. This means that if you work 47 hours in one week and 33 hours in another, a covered employer still owes you seven (7) hours of overtime pay even though your hours for the two (2) week period combined to total Eighty (80) hours. Similarly, employers generally cannot fail to pay overtime due in one workweek and instead give you time off in another week.

(22) What if I get “comp time” (compensatory time) instead of pay for overtime?

Typically, only government employers are permitted to pay “comp (compensatory) time” in lieu of overtime wages for hours worked over Forty (40) in a workweek. As a result, “comp time” normally does not alleviate a private employer’s obligation to pay overtime compensation. Therefore, even if you’ve been given “comp time,” you may still be entitled to overtime pay for any workweek within the past three (3) years where you worked more than Forty (40) hours.

(23)Will I be able to recover overtime wages if I accepted cash wages?

Yes, even if an employer pays cash wages for any overtime hours worked, you still are entitled to time and one-half your regular rate for every hour over Forty (40) per week. If your employer paid you cash wages at “straight time,” meaning at the same rate as you were paid for hours under Forty (40), you may still be due the additional “half time” wages which you were not paid.

(24)What if I am paid tips?

Even tipped employees who work in occupations such as waiters, servers, “bus boys,” and delivery drivers are normally entitled overtime compensation for hours worked in excess of Forty (40) within a work week. The calculations can be complicated for tipped employees, and many employers get them wrong, so contact us for assistance in determining what your rights may be.

(25) Can I waive my rights if I sign a severance agreement or other document when I leave my job?

Private employers cannot force their employees to sign away their rights to minimum or overtime wage, even in a severance agreement or other contract. Why? The law does not permit employers to avoid their obligation to pay overtime wages simply by asking an employee to waive their rights. Only waivers supervised by the U.S. Department of Labor or those which are obtained in a private lawsuit, which commonly require approval from a Court, can eliminate your rights.

(26) Am I entitled to bring a claim for unpaid overtime wages or minimum wages if I am not a U.S. citizen or legal resident?

Yes, your right to minimum and overtime wages under the Fair Labor Standards Act are generally guaranteed by law regardless of your citizenship or status.

(27) What if I’m interested in pursuing a claim but I plan on moving out of the State?

While it is difficult to estimate the time for a case to be resolved or litigated through a trial, many cases brought under the Fair Labor Standards Act settle before trial. However, litigation is unpredictable, so as long as your lawyers know how to contact you at all times and you make yourself available for all necessary proceedings in your case—such as your deposition, Mediation, etc.—you can move forward even if you move across the country.

(28) How much will your legal services cost?

The Shavitz Law Group, P.A. represents virtually all of its clients on a contingency fee basis, and the firm generally charges no fees or costs unless a successful recovery is made on your behalf. Additionally, the Fair Labor Standards Act requires employers that violate the law to pay for the reasonable attorneys’ fees and costs a prevailing plaintiff has incurred during a lawsuit.

(29) Is money recovered in an overtime or minimum wage case taxable?

Unpaid wages which are recovered in the course of a lawsuit are generally taxable, just like wages in a regular paycheck. If you recover money owed to you in a minimum or overtime wage case, you will likely be taxed in a similar way as if you had actually received those wages during the course of your employment. If you have questions about your circumstances, please contact a tax professional for specific legal advice or contact us so that we may determine if we can provide you with direction or a referral to a tax expert.

To learn more about how the Shavitz Law Group, P.A. can help protect your right to fair pay and equal treatment in the workplace, contact us today for a free consultation.