Twelve common overtime pay questions – ANSWERED!

Overtime pay can be confusing to non-lawyers.  In an effort to provide as much public information about overtime pay as possible, we provide the following article that provides some of the most frequently-asked unpaid overtime questions:

Can a company not pay overtime?  

Under the federal overtime law, workers must be paid overtime unless they are exempt. But you should never assume that you are exempt – just because your employer classifies you as exempt does not mean that you truly are exempt from overtime pay in the eyes of the law. If you are not paid overtime, you should consult with an experienced overtime pay attorney to learn of your legal rights.   

What makes you overtime exempt?

Whether an employee is exempt depends on their job duties and how they are paid.  Most workers are entitled to overtime pay, especially those who work in the field.  Some office jobs are exempt – these are primarily administrative, managerial or professional jobs.  For example, doctors and lawyers are generally exempt from overtime pay under the professional exemption.  Managers who hire and fire and oversee multiple employees may also be exempt from overtime pay. Other more narrow exemptions may also apply.  An overtime attorney can usually quickly tell you whether you would be exempt from overtime pay or not.    

Can I sue my employer for not paying overtime?

Yes – federal law allows workers to sue their current or former employer for unpaid overtime. Talk to an overtime attorney to learn more about how an unpaid overtime lawsuit would proceed.  

Can you sue your job for not paying you?  

Yes, you can sue for unpaid wages, as well as wages if you were not paid the minimum wage, and for overtime pay.  You can also sue for unpaid bonuses or commissions if the employer was legally obligated to pay them and failed to do so.  

Is straight time pay legal?  

Generally, no.  Companies often misclassify their workers as exempt or as independent contractors and deny them overtime pay and instead pay them straight time.  This often violates state and federal overtime laws.  If you have been paid straight time within the past three years, consult with an overtime attorney as soon as possible to see if you have a right to recover overtime pay.  

Why is mandatory overtime legal?

Under the federal overtime laws, a company is allowed to require its workers to work overtime, but it must pay them overtime unless they are exempt.  This is due to the policy behind the federal overtime statute, which was to encourage employers to pay their workers more if they worked more than 40 hours per week.  

How far back can I sue for overtime?

Generally, you can go back two years under the federal overtime law.  You can go back three years if you can show that the employer willfully violated the overtime statute.  Whether an employer’s violations of overtime laws was willful is often a fact issue to be decided by the trier-of-fact (i.e. the judge or jury).  This shows that you should not wait to ask questions about overtime pay – talk to an overtime pay attorney as soon as possible.  

How much money can you get for suing your employer for overtime?  

It depends in large part on how many hours you worked and what your rate of pay was.  Under the federal overtime law, the worker can recover their unpaid overtime, as well as an equal amount in liquidated damages as well as attorney’s fees if they are successful in an overtime pay lawsuit.  Some states (such as New Mexico and California) have their own overtime laws and these laws may allow overtime claimants to recover additional amounts for work performed in those states.  

Can salary employees sue for overtime?  

Yes, as stated above, being paid a salary does not automatically mean that the worker is not owed overtime pay.  Talk to an attorney to see whether your salaried job qualifies for unpaid overtime.  

Can exempt employees sue for overtime?  

Yes, being classified as exempt does not automatically mean that the worker is not owed overtime pay.  Talk to an attorney to see whether your salaried job qualifies for unpaid overtime.  

How much should overtime pay be?  

Typically, it should be time-and-a-half for each hour worked above forty in a week.  A company can sometimes pay half-time if it meets certain criteria.  Talk to an overtime pay attorney to learn more.  

Is withholding overtime pay illegal?

Yes, if the worker is not exempt.  Most manual laborers must be paid overtime.  If you worked within the past three years and were denied overtime pay, you should seek legal advice to see if you can recover your wages.  

About the author: Josh Borsellino is an experienced overtime pay attorney.  He represents clients across the state of Texas, and has also filed cases in New Mexico and Arkansas.  For a free evaluation of your overtime questions, call Josh at 817.908.9861 or email him through this link.  

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