Frequently Asked Questions



1.     WHEN IS OVERTIME PAY DUE?
        Overtime pay of time and a half is due once an employee has worked forty (40)         hours in a workweek.

2.     IS EXTRA PAY REQUIRED FOR NIGHT, WEEKEND OR HOLIDAY WORK?
        Extra pay for night, weekend or holiday work is not covered by Wage and Hour         laws.  Therefore, in order to be entitled to premium pay, a worker must work    
        more
than 40 hours in a workweek, unless an employer has agreed to pay
        premium pay under other conditions in addition to
overtime hours.

3.     WHAT IF I AM CLASSIFIED AS AN INDEPENDENT CONTRACTOR?  AM I
        ENTITLED TO OVERTIME?
        True independent contractors are not entitled to overtime, because only                     employees are entitled to statutory overtime.  However, frequently employers             misclassify employees as independent contractors, either intentionally to avoid         overtime payments, or accidentally.  Facts often considered in determining             whether someone is an employee or an independent contractor are: (1) The                 amount of control the employer has over you; (2) Whether there is an opportunity
        for profit that is not controlled by the employer; (3) Whose tools are used for the
        job;
(4) Whether there are set hours or the employer allows you to come and go
        as you
please; and (5) The permanency of the relationship.

4.    WHAT IS THE GOVERNING LAW?
       The federal law governing the payment of wages is called the Fair Labor
       Standards Act
("FLSA").  The FLSA establishes the standards governing
       employees' rights to
minimum wage and overtime pay.  The FLSA requires the
       payment of
time and a half wages for most employees for all hours over 40
       worked in a workweek. 
Additionally, the FLSA requires that most employees be
       paid a minimum wage of at least $5.85 for all hours worked.  Additionally, many
       States have their own State Overtime laws and laws requiring a
higher minimum
       wage
be paid.

5.    IF I FILE AN FLSA LAWSUIT AND WIN, WHAT CAN I RECOVER?
       If an employee prevails on his/her FLSA claim, he/she will typically be entitled to        recover back pay for all unpaid overtime, usually beginning two (2) years before
       the complaint is filed.  In certain situations, the Court may allow three

       (3) years of recovery.  Additionally, in some cases, employees are entitled to
       recover
double the amount of unpaid wages, or "liquidated damages."  Most
       importantly, the FLSA requires that the employer, not the employee, reimburse
       out-of-pocket litigation costs and pay the prevailing employees' attorneys' fees.

6.    HOW DOES OVERTIME WORK?
      Generally, employees must be paid time and a half their regular hourly rate for any
      hour worked over forty (40) in a workweek.  For example, if you make $10.00 per      
hour normally, then you should be paid $15.00 per hour for all hours over 40 you           work in a workweek.  If you are paid a salary under a method other than by the           hour (i.e. day rate or piece rate), your overtime rate needs to be converted to an       hourly rate using the methods established by the United States Department of           Labor ("DOL").  The methods used to calculate overtime owed vary depending
      on
the way an employee is paid for the first 40 hours of work.  Contact an
      overtime
wage and hour attorney to calculate how much you might be owed.

7.    WHAT IS CONSIDERED WORK UNDER THE FLSA?
      Typically, work time under the FLSA all time spent in job-related activities which:       (1) benefit the employer; (2) the employer "knows or has reason to believe" are           being performed by the employeee; (3) which the employer does not prohibit the           employee from performing.  This includes time spent "off-the-clock" work such  
      as
maintaining equipment before and after a work shift, staying late after work to       finish up required paperwork, making job-related phone calls, emails and
      paperwork from home after hours, and working through designated meal periods
      while the
employer makes automatic deductions.  Additionally, time spent
      traveling during
the work day, as well on "on call" or "waiting" time may be   
      compensible as time
worked.  In many instances, even employers who pay some
      overtime
, illegally fail to employees for ALL hours worked.  Therefore, even
      employees who have received some overtime pay may be entitled to   
      recover additional
overtime pay.

8.   HOW IS A WORKWEEK DEFINED UNDER THE FLSA? 
      Under the FLSA, a workweek is defined as any seven (7) day consecutive
      period. 
The starting and ending point for the workweek is defined by the  
      employer. 
Overtime must be computed on a week-by-week basis.

9.    CAN MY EMPLOYER AVERAGE TWO (2) WORKWEEKS TO DETERMINE MY        ENTITLEMENT TO OVERTIME PAY?
       No.  Since overtime is calculated on a week-to-week basis, as stated above, an        employer may not average two (2) weeks, even if it represents one pay period. 
       For
example, if an employee works 50 hours one week and 30 hours the next, the        employer must pay ten (10) hours of overtime for the first week and may not
       simply
pay 80 hours at "straight time" for the pay period.

10.   CAN MY EMPLOYER PREVENT ME FROM WORKING OVERTIME IF I WANT
       TO?

       Yes.  An employer may schedule employees in such a way to keep them from            working more than 40 hours in a workweek.

11.  MUST OVERTIME BE APPROVED BY AN EMPLOYER TO BE   
       COMPENSABLE?
       Typically not.  The law states that if the employer knew or had reason to know
       that
overtime was/is being worked, the time is compensable.  Therefore, lack of        authorization from the employer for overtime work will typically not prevent an            employee from entitlement to overtime pay for time worked.

12.   WHAT IF I DO NOT HAVE RECORDS OF MY OVERTIME WORKED?
       The burden is typically on the employer to keep accurate records of time
       worked
by its employees.  Where an employer fails to keep accurate time
       records, Courts
typically allow an employee to recover unpaid wages based on
       a reasonable and realistic estimation of hours worked.  Obviously, such an
       estimation varies from
case to case.

13.   INSTEAD OF PAYING ME OVERTIME, MY EMPLOYER GIVES ME "BANKED
       TIME" OR "COMP TIME" TO USE IN OTHER WORKWEEKS.  IS THIS
       LEGAL?

       Not unless you work for the government or a municipal employer.  The FLSA             requires that private employers pay employee cash (or its equivalent) when                 employees work more than 40 hours in a workweek.  Therefore, typically, if an             private employer is giving employees "banked time" or "comp time" rather than
        time and a half pay for
overtime hours, they are in violation of the FLSA

14.   I AM NOT A LEGAL CITIZEN OF THE UNITED STATES.  AM I STILL
       ENTITLED TO
RECOVER UNPAID OVERTIME WAGES?
       Yes.  The FLSA provides for payment of anyone who has worked overtime
       hours
, but who has not received appropriate overtime pay, regardless of their
       citizenship status or lack thereof.


15.   MY EMPLOYER PAYS ME IN CASH.  AM I PREVENTED FROM PURSUING A
        CLAIM
FOR OVERTIME OR MINIMUM WAGE COMPENSATION?
        No.  Employees paid in cash have the same rights to be paid overtime for hours
        over 40 in a workweek, and to be paid the legal minimum wage in the State
        where
they are working regardless of how the employer pays.

16.   I QUIT/GOT FIRED AND DID NOT RECEIVE MY FINAL PAYCHECK.  CAN I
        RECOVER THIS UNPAID COMPENSATION?

        Yes.  This is a very common violation of minimum wage law.  If you have
        worked,
but have not been paid for your work, your former employer has failed
        to pay you
at least minimum wage, as required by law.

17.   I SIGNED A WAIVER, STATING THAT I WOULD NOT PURSUE OVERTIME
        WAGES.  CAN I STILL PURSUE A CLAIM?

        Yes.   Employers generally cannot ask an employee to waive his or her
        entitlement
to be paid minimum or overtime wages.  Only waivers supervised
        by the 
Department of Labor (DOL) or obtained with Court supervision, as the
        result of a 
private lawsuit, can extinguish your rights to be paid minimum or
        overtime wages
.

18.   CAN AN EMPLOYER FIRE AN EMPLOYEE IF HE OR SHE SUES FOR UNPAID
        WAGES?
       No.  An employer cannot legally fire an employee or retaliate against an
       employee if the employee sues for
unpaid wages.  Common examples of
       illegal retaliation
are "blackballing" an employee, demoting an employee,
       reducing an employees hours, giving an employee worse shifts, reducing job
       duties and giving false poor performance reports.  Any such negative job action in
       retaliation for an employee
bringing a lawsuit to recover unpaid wages is
       specifically prohibited by Federal law.


19.   HOW FAR BACK CAN I GO TO RECOVERY UNPAID OVERTIME WAGES?
       The FLSA normally permits an employee to go back two (2) years from the date         their complaint is filed in Court.  In certain instances, where the Court determines
        that the employer "knew" it was violating the
FLSA or "willfully disregarded" its
        obligations under the
FLSA, the Court may extend the period to three (3) years
        from the date the complaint is filed in Court.  Typically, the only way to stop
        losing
entitlement to recover wages, based on the passage of time, is to file a
        legal
complaint in Court.  Under most circumstances, simply complaining to the
        employer or calling the
Department of Labor, will not prevent you from losing
        entitlement to
recover for work performed in the past.

20.   IF I BELIEVE AN EMPLOYER OR PAST EMPLOYER OWES ME OVERTIME
       OR MINIMUM
WAGES, WHAT CAN I DO?
       Contact the Frisch Law Firm at (888)OVERTIME [888-683-7846] or
       http://www.overtimeadvocate.com/2.html for a free consultation
.


Call us at (888)OVERTIME today
(888-683-7846)