To determine if you are entitled to overtime pay, make sure you are not exempt

The Fair Labor Standards Act (FLSA) requires employers to pay minimum wage and overtime. Employers must follow the act unless an exemption applies. The FLSA only applies if there is an employment relationship. Special rules apply for many different situations.

Overtime Rights

FLSA Issues

The Fair Labor Standards Act is a federal law that governs the payment of minimum wage and overtime compensation for all hours worked in excess of 40 hours in a single week, unless you are exempt from overtime wages.  If you sue to recover unpaid overtime and employee wages, you may be entitled to double damages plus attorney’s fees.

Overtime Pay Law

Employees are due overtime pay for working more than 40 hours per week in most situations. Federal overtime law and some state laws require this. This web page has been created to help victims working for companies not paying overtime when they should. Overtime generally means earning additional pay for time worked after the employee ends a regular workday, usually an eight-hour day. If you work overtime, your employer must do two things:

  1. Keep detailed time records, and
  2. Pay at least one and a half times your regular pay rate.

To determine if you are entitled to overtime pay, you should make sure you are not exempt. The Fair Labor Standards Act (FLSA) requires employers to pay minimum wage and overtime. Employers must follow the act unless an exemption applies. The FLSA only applies if there is an employment relationship. Special rules apply for many different situations. Unfortunately, some employers take advantage of the many different laws, paying employees less than what is required.

If you work overtime (beyond the end of a regular workday or week) your employer must do two things:

  • Keep detailed records of your time worked, and
  • Pay at least one and a half times your regular pay rate for all hours you work over 40 in any given workweek.

Under federal law, in most situations, employees are owed overtime pay if they work more than 40 hours per week. Special rules apply for specific situations and some employers may take advantage of different laws to pay their workers less than what they deserve.

We can determine if you qualify for overtime pay and calculate how much is owed. If you believe your employer has not paid the legal amount you deserve, and you don’t know whether to pursue an overtime pay dispute, schedule a free consultation with us today.

Overtime sounds simple enough in theory.  If forty hours is a regular work week, an employee who works more than forty hours is spending time on work that could otherwise have been spent with family or taking care of personal matters.  In recognition of this sacrifice, the employer is required to pay 150% of the employee’s regular wages, or “time-and-a-half,” for the extra hours.

Unfortunately, it’s not always so simple.  Questions arise over what time counts as hours worked, how the employee’s regular rate of pay should be calculated, and whether a worker qualifies as an “employee” at all.  Even more, overtime rules do not apply to certain “exempt” employees, and disagreements frequently arise over whether an employee’s job duties make him or her exempt.  This article will review federal law relating to overtime pay and examine how that law is applied in a multitude of circumstances.  However, it is important to remember that every case is unique, and so anyone with questions about the application of overtime rules to his or her specific situation should consult with an experienced employment law attorney.

Fair Labor Standards Act

The federal law governing overtime is known as the Fair Labor Standards Act, or “FLSA.”  In addition to overtime, the FLSA also creates a federal minimum wage, regulates the employment of minors, and prohibits the transport in interstate commerce of any goods produced through unlawful labor practices.  The Wage & Hour Division of the Department of Labor is charged with administering and enforcing the FLSA, though employees are also permitted to bring private court actions to protect their rights.

Some states have complementary laws governing employment relationships which provide additional protections to employees.  However, states cannot pass laws allowing less protection than the FLSA.  Similarly, employment contracts or collective bargaining agreements may give employees greater rights than the FLSA, but an employee can never waive the rights granted by the FLSA in an employment contract.

Independent Contractors

The FLSA applies to all employers within the United States, regardless of the number of employees.  Importantly, though, the law’s overtime requirements do not apply to workers classified as “independent contractors.”  As a result, disagreements as to whether certain workers are “employees” or “independent contractors” are inevitable.  When called upon to make this determination, courts give little weight to written agreements labeling workers as “independent contractors.” Ultimately, the proper classification is determined by the “economic reality” of the relationship.

The “economic reality” is ascertained through an examination of multiple factors involved in the employment relationship, such as the degree of control exercised by the employer over the worker’s work, the permanency of the relationship, and whether the work is an “integral part of the employer’s business.”  If the economic reality suggests the worker is an employee, he or she is entitled to overtime pay under the FLSA.  Of course, in most traditional employment relationships in which the worker is on the employer’s regular payroll, there is little question as to whether the worker qualifies as an “employee.”

The FLSA’s Overtime Pay Rule

Under the FLSA, there is no limit to the hours per day or per week that an employee can work or be required to work.  However, employers must compensate non-exempt employees at a rate of one and one-half times the employee’s regular hourly rate (often referred to as “time-and-a-half”) for any time worked in a workweek beyond forty hours.  The FLSA does not provide for any additional compensation for work on weekends or holidays.  Collective bargaining agreements and employment contracts can provide for holiday pay, or for higher overtime rates, and some states have laws requiring higher pay rates for certain overtime work, though this article deals only with the federal law.  Importantly, neither private agreements nor state law can take away a non-exempt employee’s right to overtime pay under the FLSA.

The primary areas of contention in overtime cases are whether an employee qualifies as exempt, how many hours the employee worked in a given workweek, and how the employee’s regular rate of compensation is calculated.  We will look at what makes an employee “exempt” in more detail below.  In this section, we will discuss how to calculate an employee’s regular rate of compensation and tally the precise number of hours worked per week.

The Work Week

For purposes of overtime, hours worked are counted according to individual workweeks.  But before we can count how many hours an employee works in a week, we have to establish what constitutes a “workweek.” Under the FLSA, a “workweek” means seven consecutive twenty-four-hour periods totaling 168 total hours.  The employer gets to decide when the workweek begins, but the starting point must remain consistent.  Thus, an employer cannot allow the start of the employee’s work week to fluctuate in order to avoid paying overtime, though the period can be modified from time to time due to a change in the employee’s schedule as long as any such modifications are relatively permanent.  Importantly, each work week stands alone.  An employer may not average the hours worked over two or more weeks when determining the employee’s total hours, even if the employee is paid biweekly or monthly.

When overtime pay is earned, it must be paid by the employer on the payday applicable to the workweek in which the overtime hours were worked.  So, whenever an employee is paid his or her regular wages for the workweek in which overtime pay is earned, the employer must also include the overtime pay.  In some limited circumstances, it might not be possible to calculate the regular rate in time, in which case the employer must pay the overtime wage as soon as it can be reasonably calculated.

Hours Worked

Once the starting point is defined, measuring a workweek is fairly straightforward.  However, computing the hours actually worked by an employee can be substantially more complex.  For an employee punching a time clock, the hours during which the employee is “on the clock” and working obviously count as compensable time.  But a time clock is not possible for all types of employment, and employers may ask employees to perform work off site or off the clock.  In these situations, it is important for workers to know what counts as “hours worked” when deciding whether overtime pay has been earned.

Essentially any time an employee spends engaged in his or her primary work duties counts as hours worked.  But that is usually not the time subject to dispute.  Waiting time, meal and break time, travel time, and even sleep time are far more likely to lead to disagreements.

Waiting Time

Waiting time, or time during which the employee is not performing normal job duties but is available to work at the employer’s request, is generally divided between “on duty” waiting time and “off duty” waiting time.  The difference is commonly expressed as whether the employee is “engaged to wait” (on-duty waiting time) or “waiting to be engaged” (off-duty working time).

During on-duty time, the employee is ready and willing to work immediately but is not actually performing job functions.  On-duty waiting time usually (though not always) occurs during the employee’s regular work hours, and the employee is prevented from using the time for his or her own purposes due to constraints imposed by the employer.  A factory worker waiting at or near his or her job station for equipment to be repaired before returning to work is an example of on-duty waiting time.  On-duty waiting time almost always counts as “hours worked” and must be considered in overtime pay calculations.

Off-duty waiting time, on the other hand, is usually not paid.  An off-duty employee is permitted to leave his or her workspace and to use the off-duty time more or less however the employee pleases.  The off-duty period is long enough for the employee to use it for his or her personal benefit, and the time that the employee must return to work is usually known precisely.  An employee permitted a few hours out of the office to run errands before he or she must return to work would be considered off-duty.

On-Call Time

“On call” time is subject to a similar analysis as waiting time.  An on-call employee is not engaged in primary job duties but is available to report for work within a certain period of time at the employer’s request.  If the employee is required to stay at the worksite while on-call, on-call time will nearly always be considered as hours worked.  If the employee is on-call at home (or at another location other than the worksite), the classification of the on-call time depends upon the restrictiveness of the limitations imposed by the employer.

If the employee can use on-call time for whatever purposes he or she likes, but must simply be prepared to report to work within a reasonable time after being contacted, the on-call time is “non-restricted” and will not count in computing overtime.  Conversely, if the employer places restrictions on the employee’s use of on-call time such that the employee cannot effectively use the time for some or all personal reasons, the on-call time is more likely to be “restricted” and count as “hours worked.”  Whether on-call time is restricted or non-restricted requires a specific review of the circumstances on a case-by-case basis.  However, employment contracts or collective bargaining agreements may stipulate that certain on-call time spent by the employee is deemed as restricted, and therefore qualifies as “hours worked.”

Travel Time

Travel time presents another area of confusion when determining the weekly hours worked by an employee.  In fact, travel time is exceptional in that a separate amendment to the FLSA, the Portal to Portal Act, was passed by Congress to help clarify when travel time qualifies as time spent working.  The general rule is that time spent on the way to work, and on the way home from work, is not compensable time.  So, for the most part, commute time will not be considered when calculating overtime. However, there is an exception if an employee is called back into work after working his or her normal hours and has to travel an unusual distance.

Once an employee has reported to work for the day, any time spent by the employee traveling between worksites is considered compensable time.  So, a construction worker who reports for work in the morning at one job site and is sent in the afternoon to work at another site will be paid for the time traveling between the two sites.  In the case of day trips in which the employee does not report to his or her regular work site, the time spent traveling during the regular workday generally counts as “hours worked,” but the employer may be able to deduct from the total the amount of time that the employee would usually have spent driving to and from the regular worksite.

If travel for work requires an overnight stay, the travel time is counted to the extent it occurs during the employee’s normal work hours.  Thus, if an employee typically works from 9:00 a.m. to 5:00 p.m., hours spent traveling for an overnight trip within the regular work period are compensable, but travel time occurring before 8:00 a.m. or after 5:00 p.m. is not counted.  However, if the employee performs actual work duties during the travel time (e.g., an employee performs work duties on a laptop while on an airplane), then the time spent working counts as “hours worked.”  Time spent traveling for work on a day the employee does not typically work will also count as “hours worked” to the extent it occurs during regular work hours.

Meal and Break Time

Workers are often surprised to learn that the FLSA does not require breaks for meal or rest periods.  Of course, many states have laws requiring meal breaks, and most employers recognize that allowing employees to eat and take brief breaks during long shifts improves productivity, so most employers allow for breaks.  The question then becomes, when breaks are permitted, does breaktime count as “hours worked?”  In general, short breaks (i.e., under twenty minutes) are compensable, so a ten-minute coffee break will almost always count towards the employee’s “hours worked.”  However, if an employee extends the break beyond the time allowed by the employer without authorization, then the extended period will not be counted.

Meal times of thirty minutes or more usually do not qualify as work time unless the employer places sufficient restrictions on the employee’s use of the time such that the employee cannot effectively use the time for any personal purposes.   For meal breaks to be excluded, though, the employee must not be required to perform any job functions during the meal period.  Of course, in the modern business world, it is not uncommon for employees to use lunchbreaks to catch up on tasks related to primary job functions.  And, as you might expect, if an employee is working during a meal break – such as an assistant answering phone calls while eating – the time counts as “hours worked.”  As a result, many employers have policies prohibiting employees from eating at their work stations, or performing job functions during meal time.  These policies are designed to avoid having meal time count as “hours worked” and therefore qualify the employee for overtime pay.

Training Time

Sometimes, employees choose or are required to attend training or seminars related to their job functions.  Training time generally counts as “hours worked” unless four conditions are satisfied.  First, the training must occur outside of the employee’s regular work hours.  Second, the employee’s attendance at the training must be voluntary.  So, if the employer requires the employee to attend the training, the training time counts as work hours.  Third, the training cannot be directly related to the employee’s specific job.  And, finally, the employee must not engage in any productive work during the training.  If one or more of these factors are not met, the training time will be counted as “hours worked” when calculating overtime pay.

Sleep Time

With certain positions, like firefighters and some jobs in the medical field, it is necessary for employees to work extended shifts.  Naturally, then, there will be times when the employee has to sleep, and the employer must therefore determine whether sleep time counts as “hours worked.”  “Sleep time” here refers to time during which an employee is permitted to sleep during an extended shift and not to times when an employee who is supposed to be working falls asleep on the job.

Generally, if the employee’s shift lasts for less than twenty-four hours and the employee is required to be on site, sleep time will count as compensable time.  However, if the employee resides at the work site, such as with a nanny, or the employee works from home, sleep time is usually not counted, though the parties can of course enter into an employment agreement allowing for compensable sleep time.

If the shift is longer than twenty-four hours, sleep time may be non-compensable, but only if the parties have an agreement providing for unpaid sleep time and certain other conditions are met.  To exclude sleep time, the employer must provide the employee with a place and opportunity to sleep.  Up to eight hours of sleep time per day can be deducted from the employee’s total hours worked as long as the employee is able to sleep without disruption.  But if, due to interruptions, the employee does not get at least five hours of sleep time, no sleep time may be deducted.

 Off-Site and Off the Clock Work

In the contemporary age of smartphones and Wi-Fi, it is increasingly common for employees to perform job duties while they are off-site and not technically scheduled to work.  The classic example of this is an employee using his or her own off-duty time to respond to work emails.  For the most part, whether this time in compensable turns on whether the employer knew, or had reason to know, that the employee was working.  If the employer knew the employee was working and allowed the work to continue, the time spent will normally count as “hours worked.”

Regular Rate

After tallying up the number of hours worked by an employee in a given workweek, the next step in computing overtime pay is to calculate the employee’s regular rate of pay, which is then multiplied by one and one-half (150%) to determine the overtime rate.  Stated simply, an employee’s “regular rate” is the hourly rate paid by the employer for each hour worked by the employee during that week.  For employees paid by the hour, no calculation may be necessary. The “regular rate” is the employee’s agreed hourly wage.  However, the hourly rate calculation must also consider bonuses, commissions, and other compensation along with wages.  And many employees who qualify for overtime pay are not paid on an hourly basis.  So, for some employees, the calculation gets more complicated.

Regular Rate for Non-Hourly Employees

Depending upon how the employee’s pay is determined, different calculations become necessary to determine the regular rate.  But, what it boils down to is dividing the total pay for the week (excluding overtime) by the total compensable hours worked.  Importantly, though, regardless of the pay basis under which the employee works, under no circumstances can the regular rate be less than the minimum wage.  If that occurs, the employee’s pay must be adjusted so that he or she receives at least minimum wage for all hours worked.

If an employee is paid by the day or by the job, the regular rate is determined by adding up all compensation for the week and dividing by the total number of hours the employee actually worked.  For example, if an employee is paid $100 per day and works ten hours per day Monday through Friday, the employee will have earned $500 for working fifty total hours during that workweek.  Thus, the employee’s regular rate is $10.00 per hour.  As a result, under the FLSA overtime rule, the employee is entitled to an overtime rate of $15.00 per hour for the ten hours the employee worked over forty, and so the employee’s total pay for the work week, including overtime, will be $550.00.

The calculation for “pieceworkers,” or workers who are paid per project completed, is similar.  For example, say an employee is paid $50.00 for each article delivered, and, during an individual work week, the employee works fifty hours and delivers twenty articles.  The employee’s total regular pay would be $1,000 for fifty hours worked, or a regular rate of $20.00 per hour.  However, the employee has worked ten hours of overtime and is therefore entitled to “time-and-a-half,” or $30.00 per hour, for those ten hours.  As a result, the employee’s total pay for the workweek, including overtime, will be $1,100.00.

For non-exempt salaried employees, the regular rate is determined by dividing the weekly rate by the total hours worked.  Notably, the weekly rate is used for the calculation even if the employee is paid on a different schedule.  As a result, the regular rate for an employee paid every two weeks can vary from week to week if the employee works differing numbers of hours each week.  And, remember, employers cannot average the hours worked over the two-week pay period to avoid paying overtime.

Let’s say an employee is paid a salary of $2,000 every two weeks, and works fifty hours during the first week of the pay period and forty during the second.  For the first week, the employee has a regular rate of $20.00 per hour ($1,000 / 50 hours = $20.00 per hour).  The employee’s time-and-a-half overtime rate is therefore $30.00 per hour. However, when calculating the total pay for salaried employees, the salary payment is considered as having already included the regular rate for all hours worked during the week.  Therefore, the additional overtime pay is one-half the regular rate for each hour over forty.  The overtime rate is still 150% of the regular rate, but the first 100% was included within the salary.  Thus, in the above example, the employee is entitled to overtime pay in the amount of $100.00, and total weekly compensation of $1,100.00.

Varying Rates of Pay

If an employee’s pay rate varies depending upon the job duties in which he or she is engaged at any given time, the employee’s regular rate is based upon a weighted average.  To make the calculation, the total compensation received by the employee under both rates is aggregated and divided by the total hours worked.  The resulting average is then used to determine the employee’s time-and-a-half overtime rate.  For example, let’s say a supermarket employee works twenty hours per week stocking shelves at a rate of $15.00 per hour and thirty hours per weak as a cashier at a rate of $10.00 per hour.  The employee earned $600.00 for working 50 hours altogether.  Thus, the employee’s effective regular rate is $12.00 per hour, and the overtime rate is therefore $18.00 per hour.  This method of calculation prevents an employer from deeming the hours worked at lower-paying duties as the overtime hours.

Total Weekly Compensation

As alluded to above, with a few exceptions and regardless of the basis used to measure wages, all compensation received by an employee during the workweek – even if it does not come in the form of cash – must be included within the employee’s total pay when calculating the regular rate.  Thus, total weekly compensation includes non-discretionary bonuses, commissions, and any non-cash compensation, in addition to traditional wages.  Non-cash compensation is measured based upon the fair market value of whatever is provided to the employee in lieu of money.  So, for example, if an employee was paid with stock as part of his or her compensation, the fair market value of the stock is used in calculating the employee’s total compensation for the workweek.

Importantly, several categories are excluded from the total compensation calculation.  These include reimbursements for expenses, premium payments for weekend or holiday work, discretionary bonuses, and payment for time not actually worked by the employee (such as vacation, holiday, or sick pay).

Exempt Employees

In passing the FLSA, Congress recognized that overtime pay is not practical in all employment relationships.   As a consequence, the FLSA’s overtime rules are not applicable to all employees.  Depending upon job duties and a few other factors, certain employees are considered as “exempt,” and therefore not entitled to overtime pay under the FLSA.  Conversely, employees to whom the overtime rules do apply are referred to as “non-exempt.”   Whether a specific employee qualifies as “exempt” is one of the most frequently litigated issues in FLSA cases, and misapplication of the exemption rules is among the most common areas of enforcement by the Department of Labor (“DOL”).

According to the DOL, approximately 40% of American employees are exempt from overtime rules based upon their job classifications.  In general, a position is exempt if the employee is paid on a salary basis, and the job duties are administrative, executive, managerial and/or professional in nature.  Importantly, though, the FLSA and its implementing regulations provide for several distinct categories of exemption, each with specific requirements.  Thus, the determination as to whether a certain position is exempt must be made by reviewing whether the position meets the criteria of one of the exempt categories and not based simply upon how the employee is paid.

The exemption categories include administrative, computer, executive, highly-compensated, and professional employees.  Of course, there can be some overlap among these categories, and a job title alone is insufficient to determine whether a specific position falls within a category.   And, as with independent contractors, a statement in an employment agreement that a position is exempt, though considered, is not dispositive of whether the employee is in fact exempt.  What really matters is the position’s “primary duties,” the duties making up the main and/or most important functions of the job.

Administrative Employees

Administrative employees are exempt if they are paid at least $455 per week ($23,600 per year) on a salary or fee basis.  To qualify as administrative, the employee’s job duties must involve office or non-manual work relating to the management of the business’s general operations.  An administrative employee’s duties will include discretion and independent judgment regarding significant matters.  Examples of exempt administrative positions include employees working in human resources, marketing, or public relations.

Computer Professionals

Computer professionals are exempt if their primary duties involve systems analysis or design, computer programming, design of machine operating systems, or similar work.  The computer professional exemption differs from most other exemption categories in that the employee does not necessarily have to be paid on a salary basis to qualify as exempt as long as his or her pay is at least $455 per week or $27.63 per hour.  Exempt computer professionals include programmers, certain IT workers, software engineers, and systems analysts.  Job duties involving manufacturer of computer hardware alone, or simply working on a computer, are not sufficient to qualify a position for the computer professional exemption.


An exempt executive must be involved in the direct management of the business or of a recognized department or subdivision of the business.  To qualify as an executive, the employee must regularly direct the work of at least two other full-time employees, and the executive must have hiring and firing authority, or at least the executive’s opinions on hiring and firing must carry a lot of weight.  As with most other exemption categories, executives must be paid at least $455 per week on a salary basis.  The “business owner exemption” is a sub-category of the executive exemption applying to employees owning at least 20% of the employer business and actively involved in its management.

Highly-Compensated Employees

If an employee is “highly compensated,” meaning he or she is paid at least $100,000 per year including salary, commissions, and bonuses, the employee may be subject to the exemption for highly compensated employees.  In addition to the high pay-rate, the employee must also have job duties at least partially including duties performed by administrative, executive, or professional employees.  Employers are permitted to make an extra payment to the employee in the final pay period of the year, or within the last month, to ensure that the employee’s compensation reaches the $100,000 threshold.  And, if an employee is not employed for a full year, his or her pro rata compensation based upon the time actually worked will be used to determine whether the highly compensated exemption applies.

Professional Employees

Exemptions for professional employees generally fall within one of three sub-categories:  creative, learned, or teaching professionals.  Creative and learned professionals must be paid at least $455 per week on a salary or fee basis.  Creative professionals are engaged in work involving imagination, invention, talent and/or creatively in an artistic or creative field.  Typical fields for creative professionals include music, writing, acting, or graphic arts, but not all employees engaged in those fields qualify as creative professionals.  Whether the exemption applies depends in large part upon the level of discretion allowed to the employee and the level of control exercised by the employer.  So, for example, an artist who is provided with the subject matter for his or her projects but is granted wide creative license is likely to qualify for the creative professional exemption, whereas an artist who creates projects according to explicit instructions is probably non-exempt.

The job duties of learned professionals require advanced knowledge in a field of science or learning obtained through specialized instruction.  In most cases, learned professionals have an advanced degree relating to their job functions.   Their work is intellectual in nature, and they must be afforded wide discretion and judgment in how they perform their work.  Traditional professions such as law, medicine, accounting, architecture, and positions involving the hard sciences are usually exempt learned professionals.

The exemption for professional teachers is the only professional exemption which does not include any minimum salary.  To be exempt, the employee must be employed by an educational institution, and his or her primary job duties must involve teaching, lecturing, instructing or otherwise imparting knowledge.  Traditional academic teachers, nursery school teachers, trade school instructors, and music teachers are typical examples of exempt teaching professionals.

Outside Salespersons

A final area of exemption applies to outside salespersons whose work primarily involves making sales or obtaining contracts for goods or services away from the employer’s principal place of business.  The work performed by an outside salesperson characteristically involves sales calls made in-person to customers’ homes or places of business.  The salesperson may perform “incidental work,” such as creation of sales reports and attendance at conferences or planning meetings, at the employer’s work site and still qualify as exempt as long as the salesperson’s primary work is performed away from the office.  As with teachers, there is no minimum salary requirement for the outside salesperson exemption.

Along with the exemption categories we have discussed, the FLSA and its implementing regulations also include narrow exemptions from the overtime rules for specific types of employment, such as certain types of employment by fishing or agricultural operations and babysitting employment.  It is also worth noting that trainees who are preparing for employment within an exempt category, but who are not yet performing qualifying job duties, are not exempt from the FLSA’s overtime rules.

Enforcement of the FLSA

We’ve established what the FLSA requires and prohibits, and which employees it applies to, so now we need to look at what happens when the rules are broken.  Enforcement responsibilities lie primarily with the DOL’s Wage & Hour Division (W&H).  However, the law allows for three basic methods of addressing violations.  Regardless of the method used by the employee to raise a complaint, employers are strictly prohibited from retaliating against employees who file FLSA complaints.  Penalties imposed against retaliating employers can be severe.  This policy ensures that employees have the freedom to protect their rights without fear of recriminations from resentful employers.

The first avenue of redress for overtime violations is a W&H investigation.  W&H offices are situated across the country, staffed with investigators ready to inquire into complaints received from employees.  If a complaint is received, and the investigator determines that there is a violation, W&H is authorized to supervise the employer’s back-payment of the overtime pay owed to the employee.

The FLSA also permits the Secretary of Labor to file lawsuits, including class actions, on behalf of employees.  As with an W&H investigation, a DOL suit allows recovery of back pay, but DOL suits also allow recovery of “liquidated damages” in an amount equal to the back pay.  In effect, if liquidated damages are awarded, the employee recovers twice the amount of back pay.  Civil penalties can also be assessed against employers found to have willfully or repeatedly violated the law.  The penalty amount is periodically adjusted for inflation based upon an original $1,100 maximum.  The inflation-adjusted maximum as of January, 2018, is $1964 per violation.  The Labor Department can also ask the court to issue an injunction prohibiting the employer from engaging in any further practices in violation of the FLSA.

The FLSA additionally authorizes private causes of action by wronged employees against their employers.  In a private suit, which can be filed in state or federal court, prevailing employees recover the back pay owed, plus liquidated damages in the same amount as the back pay, along with reasonable attorney’s fees and costs.  If an employer can establish that it had a good-faith, reasonable belief that it was not required to pay overtime to the employee, the employee will not be awarded liquidated damages, so the recovery will be limited to the actual back pay owed.  An employer’s ignorance of FLSA requirements is insufficient to establish a good-faith defense.

In certain egregious scenarios, the FLSA provides for criminal prosecution of employers who have intentionally and voluntarily violated the law’s requirements.  In cases in which a flagrant violation is proved, the employer may be subject to fines of up to $10,000 and, in cases of multiple convictions, even prison time.

What to do if your employer wrongfully fails to pay overtime?

Any worker who believes his or her employer has wrongfully failed to pay overtime should file a complaint with the local W&H Division office or consult with an attorney with experience in employment and labor law.  No private cause of action is available if W&H has already supervised the recovery of back pay, or if a Labor Department suit has already been initiated, so, if there is any doubt as to which remedy is appropriate, seek the guidance of a knowledgeable attorney.  Because the statute of limitations for most FLSA cases is two years (three years for certain “willful” violations), it is important that any employee whose rights have been violated consult with an attorney as soon after the violation as practical.

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