Overtime Pay

Rob Wiley: My name is Rob Wiley and today I'm going to be talking with Austin employment lawyer, Colin Walsh, about overtime pay. Now, when an employee goes to work and they work more than 40 hours in a workweek, is there something that happens about their pay?

Colin Walsh: Yes, they should be getting overtime pay at a rate of one and a half times their regular pay.

Rob Wiley: So if somebody's regular rate of pay is $10.00 an hour and then they work 41 hours in a workweek, for that 1 hour that they work over 40 hours, instead of being paid $10.00 an hour, they would be paid $15.00 an hour.

Colin Walsh: Yes, that's right, that's what the law requires.

Rob Wiley: Is everyone required to be paid overtime?

Colin Walsh: No, there are exemptions or exceptions to the FLSA overtime requirements.

Rob Wiley: And I think that this is an interesting law. It's one of the oldest laws that we have. The FLSA is the Fair Labor Standards Act of 1938. It was passed when Roosevelt was president. And knowing that employers would want to get out of having to pay overtime it simply says that everyone who is engaged in commerce and suffers or is permitted to work is going to be paid overtime. And then the law provides that certain employees are exempted out of the law, which is why sometimes you'll hear about a position being exempt or non exempt. And if it's exempt, you might be paid a salary instead of being paid, hourly with overtime. But can anyone be paid a salary? Is that the employer's decision or is that a decision that the law makes?

Colin Walsh: Well, that's a decision that the law makes. There are certain salary requirements. All of these exemptions are designed to be narrowly construed and have several requirements.

Rob Wiley: I think the ones that we see the most are going to be what are called the white collar exemptions. So if somebody is an executive and they're managing two or more people, they can be paid a salary. If someone is a professional, like a doctor or a lawyer, they can be paid a salary. But for most workers, you're required to be paid hourly and if you work more than 40 hours in a workweek, you have to start getting time and a half. But we see violations of this law all the time and I know one of the violations we see is where a worker is misclassified. So what kind of violation is that?

Colin Walsh: Well, that would be an overtime violation. Where an employee should not be receiving a salary, but does receive a salary, that employee is entitled to overtime for all those extra hours that they worked.

Rob Wiley: So for instance there is an exemption in the law that says if you're an executive, if you manage people, you can be paid a salary, but the law says you have to manage two or more people. So if you only actually managed one person, then you wouldn't qualify for that exemption. These exemptions are very technical. Anytime that you feel like you're not truly being a manager, not truly doing the high level, white collar work, then I would think it would be worth your time to talk to an attorney to see if, in fact, you're being mispaid. In addition to misclassification, there's another issue where people are worked off the clock. What does that mean?

Colin Walsh: Well that means that their employer is making them do work before they clock in or after they clock out on a given day.

Rob Wiley: So basically, if, if you're working hours, but it's not being recorded on your paycheck. Sometimes we see this where the employer just automatically records your time as opposed to the employee clocking in and clocking out, which would give an accurate rendition of the amount of time worked. The other way we see it though is sometimes with deductions or automatic deductions that the employer shouldn't be taking, and one of those is for lunch.

Colin Walsh: Yes. If an employee is forced to clock out for lunch, they can't be required to continue doing work during that lunch hour.

Rob Wiley: Yes, you have to be completely relieved of duty. I would be very suspicious of anyone eating lunch at your desk. That is indicative that you are not completely relieved of work. If you're having to be available for calls, taking calls while you're on lunch then you haven't been relieved of duty. And if you add in all those time periods that your employer has deducted for lunch that could be 5 hours extra a week.

Colin Walsh: Yes.

Rob Wiley: And of course, this law doesn't just compensate someone for the money that they should have gotten, it has a penalty built into it.

Colin Walsh: Yes, that's right. They would get double what they lost and what they should have been paid.

Rob Wiley: So an employer that is improperly deducting an hour for lunch every week could end up having to come back in and pay an extra 10 hours of pay a week, even more, depending on overtime hours.

Colin Walsh: Yes, that's right.

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