Orlando Overtime Attorney - providing professional services for Wage and Hour disputes, Overtime and Minimum Wage matters, and other legal services for residents in Orlando, Kissimmee, and throughout the Central Florida Area.


1. My employer told me that since I am being paid a salary, I am not eligible to receive overtime pay (time-and-a-half) no matter how many hours I work in a week. Is she/he correct?


ANSWER:

No.  Just being paid on a salary basis is not the test.  Your employer has to meet certain exemptions. Genuine executives, administrative employees and professionals do not qualify for overtime pay so long as they are paid by their employer on the "salary basis" as defined by overtime laws.  Simply paying an employee a fixed salary does not mean that the employee is exempt from minimum wage and overtime pay.   An employee is exempt only if the employee meets all the requirements of a specific exemption as defined by the Fair Labor Standards Act ("FLSA").  While payment on a salary basis may be one of several requirements for an exemption, it does not necessarily mean an employee is automatically exempt from being paid time-and-a-half for hours worked over 40.  For example, a secretary who is paid a salary does not meet the requirements of any of the white collar exemptions and is still entitled to overtime pay.  The legal distinction is not between salaried employees and hourly employees; it is between exempt and nonexempt employees.  Many employees are classified as executives, administrative employees, or professionals who really do not qualify for those designations under the FLSA overtime laws.  Many employers bestow fancy job titles to employees as an attempt to deny them overtime pay.  However, it is your actual work duties that matter, not your title.


2. Can my employer provide me with "comp time" instead of paying me overtime?


ANSWER:

With very few exceptions, it is illegal in the private sector to give "comp time" (compensatory time) to an employee in order to avoid paying them time-and-a-half for hours that they work in excess of 40 per week. In other words, it is illegal to "carry hours" of an employee from one week to the next to avoid having to give overtime pay. To attempt to relieve themselves of liability for overtime pay, employers sometimes grant time-off in lieu of paying overtime pay (commonly called "comp time"). Such time-off plans can avoid an employer's overtime pay liability under the FLSA only if the time-off plan is properly structured and carefully administered. Unfortunately, unless an employer carefully meets the requirements for a valid time-off plan, the employer can be in the unenviable position of having granted an employee paid time-off and still being liable to the employee for overtime pay.

Time-off arrangements are permitted under the FLSA only in very limited circumstances and if specific arrangements are met. For example, one requirement is that the time-off must be given in the same pay period in which the overtime was worked.  Rarely have employers taken that or any of the other requirements into account in structuring their time-off plans. In most cases, if an employer is granting time-off in lieu of paying of overtime pay to its nonexempt employees, it probably has not removed its overtime pay liability.

The FLSA does permit public employers to utilize a compensatory paid time-off plan in lieu of payment of overtime pay to its nonexempt employees. Specific requirements exist with respect to such compensatory time-off plans by public employers. Those requirements and rules do not apply to private employers.

Even if an employer structures a time-off plan that meets the FLSA's requirements, it still may not be permitted under an applicable state law.


3.  I work for a very small company that is not even incorporated. I thought that the federal overtime laws applied only to large businesses. Is my employer covered by the Fair Labor Standards Act?


ANSWER:

The following are covered by the Act regardless of their dollar volume of business: hospitals, institutions primarily engaged in the care of the sick, aged, mentally ill or disabled who reside on the premises; schools for children who are mentally or physically disabled or gifted; preschools, elementary and secondary schools and institutions of higher education; and federal, state and local government agencies. Employees of firms that do not meet the $500,000 annual dollar volume test may be individually covered in any workweek in which they are individually engaged in interstate commerce, the production of goods for interstate commerce, or an activity which is closely related and directly essential to the production of such goods. Domestic service workers, such as day workers, housekeepers, chauffeurs, cooks, or full-time babysitters, are also covered if they receive at least $1,000 (1995) in cash wages from one employer in a calendar year, or if they work a total of more than 8 hours a week for one or more employers.


4.  If I bring work home, does my employer have to pay me for this time?


ANSWER:

Yes.   Any time that you are working for your employer, such as while eating lunch, bringing work home, etc., and your employer knows it, you are entitled to be paid for that time. If those work hours push you over 40 hours per week, then you are also entitled to overtime pay at time-and-a-half for those extra hours.

Many FLSA lawsuits have involved employers failing to include time spent by employees performing work activities outside of their normal shifts. Some employees, for example, may "come early" and start working before the official start time of their shifts. Such time counts as work time and must be included in FLSA pay computations, provided only that the employer knew or should have known that the employee was beginning work early (and, of course, to the extent that the employee spent pre-shift time actually performing work activities). Pre-shift "roll calls" are work time. Time spent setting up equipment before the official start time of a shift is work time.

Some employees may similarly "stay late" after shifts performing work; this time must be counted as work time, as well. Time spent by an employee cleaning equipment after the close of a shift is work time. Post-shift work time could also include time spent by an employee performing job-related activities "on the way home," as for example, a secretary who drops off the day's mail at the post office or delivers some paperwork to a customer or supplier. Some employees take work home. That time may well be work time. Similarly, if an employee is contacted at home by telephone for work-related reasons, the time spent is work time (and, of course, if an employee is "called back" to work, the time counts as work time.


5.  Can employees be asked to waive their rights to payment of minimum wage or overtime?


ANSWER:

No.  A covered employee is legally entitled to minimum wage and overtime pay calculated in accordance with the federal Fair Labor Standards Act (FLSA). The employee does not have the power to waive those requirements.  If an employer is not paying minimum wage or overtime pay because it believes its employees have waived their right to such pay, it is mistaken and could have significant back-pay liability.


6.  What if I am an independent contractor and not an employee?  Am I still entitled to be paid for working overtime?


ANSWER:

Employers' misclassification of employees for purposes of overtime is not limited to executives, administrators and professionals. Many workers are classified as "independent contractors" when they should really be classified as employees subject to overtime pay. Manipulation of working relations by employers seeking to avoid employment regulations is not uncommon and there are a growing number of workers who toil in the gray area between "employee" and "independent contractor."

The Fair Labor Standards Act defines "employee" as "any individual employed by the employer." 29 U.S.C. § 203(e)(1). "To employ" under the FLSA, means "to suffer or permit to work." 29 U.S.C3 (g).   An "employer" includes "any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. § 203(d).

The Supreme Court has held that courts should apply these terms in light of the "economic reality" of the relationship between the parties. Goldberg v. Whitaker House Co-op., Inc., 366 U.S. 28, 33, 6 L. Ed. 2d 100, 81 S. Ct. 933 (1961). The factors in this economic realities test, although not exhaustive, include:

  • (1) the degree of control over the manner in which the work is performed;
  • (2) the worker's opportunity for profit or loss depending on his managerial skill;
  • (3) the worker's investment in equipment or materials, or his employment of helpers;
  • (4) whether the service rendered requires a special skill;
  • (5) the degree or permanence of the working relationship; and
  • (6) whether the service rendered is an integral part of the employer's business.

Donovan v. DialAmerica, 757 F.2d 1376, 1382 (3rd Cir. 1985) (quoting Donovan v. Sureway Cleaners, 656 F.2d 1368 (9th Cir. 1981)).

     The economic realities test is not mechanical or formal in its application. Instead, "it is the totality of the circumstances, and not any one factor, which determines whether a worker is the employee of a particular alleged employer." Baystate Alternative Staffing, Inc. v. Herman, 163 F.3d 668, 675 (1st Cir. 1998). The economic realities test looks to the specific facts of each case to determine whether an entity is an "employer." Rutherford Food Corp. v. McComb, 331 U.S. 722, 91 L. Ed. 1772, 67 S. Ct. 1473 (1947). Therefore, a court will address all factors except those related to profit and loss, special skill, and worker's individual investment, because no FSLA case has found any of these factors significant as to whether a temporary employment agency is an "employer."


7.  My employer sends me e-mails and calls me on my cell phone after I have left work for the day. I also do work at home on my personal computer. Am I entitled to be compensated for this time?


ANSWER:

Yes.  Any time that you are working for your employer, such as while eating lunch, bringing work home, answering e-mails, pages, telephone calls, etc., and your employer knows it, you are entitled to be paid for that time. If those work hours push you over 40 hours per week, then you are also entitled to overtime pay at time-and-a-half for those extra hours.

Many FLSA lawsuits have involved employers failing to include time spent by employees performing work activities outside of their normal shifts. Some employees, for example, may "come early" and start working before the official start time of their shifts. Such time counts as work time and must be included in FLSA pay computations, provided only that the employer knew or should have known that the employee was beginning work early (and, of course, to the extent that the employee spent pre-shift time actually performing work activities). Pre-shift "roll calls" are work time. Time spent setting up equipment before the official start time of a shift is work time. Some employees may similarly "stay late" after shifts performing work; this time must be counted as work time, as well.

Time spent by an employee cleaning equipment after the close of a shift is work time. Post-shift work time could also include time spent by an employee performing job-related activities "on the way home," as for example, a secretary who drops off the day's mail at the post office or delivers some paperwork to a customer or supplier. Some employees take work home. That time may well be work time. Similarly, if an employee is contacted at home by telephone for work-related reasons, the time spent is work time (and, of course, if an employee is "called back" to work, the time counts as work time.

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Frequently Asked Questions about Overtime Pay