Home / Practice Areas / Common Questions by Workers About Overtime Wage Rights Under the Fair Labor Standards Act (FLSA) and Other Misconceptions

Q:  I’m paid a salary so my employer says I’m not entitled to overtime wages (also known as a premium for overtime hours worked) is this correct?


A: No.  Whether you are paid is not legally determinative of whether you are entitled to be paid overtime wages under the FLSA.   The FLSA states that any person performing work for an employer who is subject to the FLSA (an employer which has revenues of $500,000 or is engaged in interstate commerce) and works overtime hours must be paid premium pay for the hours at a rate of one and one half times the employee’s regular rate of pay).


Your position either satisfies an exemption to the entitlement under the FLSA for overtime wages or not.  But, just because an employer classifies you as exempt, or states you are exempt also may not be legally correct.  Hence there are thousands of cases across the US filed each month in which workers file claims for overtime wages under the FLSA who have been classified as exempt.  This is what we call a “misclassification case”.


Q: How can I prove I have been misclassified and unlawfully denied overtime wages under the FLSA?


A:  You, as an employee under the FLSA, do not have the burden of proof in an overtime wage claim and lawsuit under the FLSA.  That’s right!  The Employer has the legal burden of proof, and it must prove the exemption under the law.  What, you mean I don’t have to prove my employer misclassified me?  Yes, that’s correct.


Q:  I have a college degree and work in an white-collar type office job, and have a fancy job title, such as “executive”, “manager”, “director”, “account representative”…. so surely I’m exempt?


A:  No, again, your position either meets the exemption definition or not, but having a degree an being a white-collar worker, or having a fancy job title or even being called a “manager” has no bearing on whether you are exempt an entitled to overtime wages under the FLSA.  Even Accountants have been held to be non-exempt in certain settings.  Human Resources employees and generalists have been held to be non-exempt.  Executive assistants likewise are often found to be non-exempt.


Q:  I’m paid a salary and a commission as an account manager, and essentially I conduct sales over the telephone and internet, and my employer says I am not entitled to overtime wages since I am paid the commission.  Is this employer correct?


A:  No.  Inside sales representatives, and people who generally sell over the telephone or internet or a combination thereof generally do not satisfy or meet any exemption under the FSLA.  Commissioned sales people working as inside sales representatives are not-exempt employees, unless working in a retail or service business and further satisfying several other elements attributed to the 7(I) exemption. 


I have been amazed by the number of medium and large size companies, even publicly traded corporations that willfully break the law and refuse to pay overtime wages to inside sales representatives.   The mentality of the companies is that they would rather deal with lawsuits and and claims then curtail the number of hours sales reps work which would cut into their sales.    In other words, the benefit of the extra sales and revenue being made by coercing, forcing, pushing and intimidating employees to work overtime hours without pay outweighs any risks that one of them or many file a claim for overtime wages.


Q: My employer pays me overtime but the rate varies each week I work overtime and I never know if I’m being paid correctly, is this proper?


A: The FLSA provides for an alternative method of paying overtime in lieu of the default method of time and one half the employee’s regular rate of pay.  This alternative method is found in CFR 774.118, called the fluctuating work-weeks or half time pay.  The main requirement is that the employee must be paid on a salary basis, not an hourly pay and be classified as non-exempt.  Then, the employer may pay the employee a rate of ½ the employee’s regular rate of pay determined by dividing the weekly salary by the number of hours the salary was intended to cover to come up with the regular rate of pay, and then take half of that as the overtime premium (or half time rate).  Thus, the denominator is the number of hours the salary was intended to compensate you for, not the number of hours you actually work. 


However, there is always the contention by the corporations and employers that the denominator is always the number of hours you worked that week because your salary was intended to compensate you for “all hours worked”.  All of this depends on the particular facts and circumstances of each employee-employer relationship.  So in order to determine if you are being paid correctly, and not underpaid for the overtime hours, you will need to consult with an experienced FLSA lawyer like Mitchell Feldman, Esq.  Mitchell Feldman Esq. knows the FLSA, and has been involved with national, large scale collective action cases under the FLSA against such corporations as:  Lowe’s, Burger King Corp, Fleetcor, Payless Shoesource, Burlington Coat Factory, Avis/Budget, Circle K, Tire Kingdom, Bar Louie etc.


Even Publix Supermarkets was forced to pay Millions of Dollars to thousands of employees in a national overtime wage claim when they miscalculated and failed to properly pay overtime wages despite paying half time because they failed to include bonuses in the calculation of the regular rate of pay.


Therefore, in order to know whether the employer is paying you correctly for all overtime wages, you should consult an experienced FLSA lawyer such as Mitchell Feldman, Esq.


Q: I’m a salaried employee who works many overtime hours and treated as exempt,  but can my employer deduct wages from my salary if I’m late or leave early or do not meet the 40 hours?


A:  An employer may not deduct or reduce your pay and treat you like an hourly employee is less than whole day increments of they lose the exemption any you may be entitled to be paid for all the overtime hours worked in the past and the future going forward.   Employers who have a bona fide sick leave policy may deduct your pay if you miss a day in whole day increments without violating the salary basis of the FLSA. 


Q:  My employer reduced my salary for breaking some equipment to pay for it, is this lawful and how does this affect my rights under the FLSA. 


A: No employer may reduce the employee’s salary due to changes in job performance or to charge you for things incidental to your employment, unless there is a written policy and agreement prior to the employment.  Any employer who reduces your salary because of job performance or related issues, or charges you for things like uniforms will lose the right to claim an exemption under the FLSA, meaning you will be entitled you all past and future overtime wages.


Q:  My employer has converted me to hourly paid employee after years of being a salaried employee, is this lawful and how does this affect me?  What are my rights under the FLSA.


A:  Typically when an employer reclassifies an position or job from exempt to non-exempt, hourly paid employees it is in response to a claim or lawsuit from someone challenging the classification, or the employer audited the position and determined that it was making a mistake under the FLSA.  However, what most employers that I have encountered fail to do is to notify these employees that you most likely are entitled to be paid overtime hours for all the hours worked in the past 2 to 3 years.  The company or corporation is hoping that no one will  complain further, as the statute of limitations continues to run and as time goes by all the wages they owe or would have had to pay to the affected employees is lost and not recoverable.


Q: Can I recover overtime wages from my prior employer I worked for in the previous 5 years?


A: The FLSA has a standard 2 year statute of limitations, meaning that you may only claim wages going backwards from the date you file your lawsuit for a period of 2 years and capture any wages during that period time as eligible work-weeks.  The FLSA provides for a 3 year statute of limitations in situations where the employer/corporation willfully violated the FLSA.  Whether the employer willfully violated the FSLA is a determination that is fact based and determined on a standard of whether the employer acted with reckless disregard for the requirements under the FLSA.


Q:  I’m afraid to challenge my current employer and make a claim for my overtime wages under the FLSA because I’m concerned they will fire me or demote me, is there any protection against such retaliation?


A:  Yes, the FLSA, as well as many state wage laws such as the Florida Minimum Wage Act prohibit retaliation against any employee who make a claim, formal or informal for overtime wages or even minimum wages.


Q: My employer just says I’m exempt, and not entitled to overtime wages but will not explain it further orally or in writing, do I have a right to know?


A:  Yes, as the employer has the burden of proof, they need to let you know what exemption it claims your position falls under.  A sign your employer may be violating the FLSA is when they cannot articulate any specific exemption, and thus may not have taken any prior analysis under the FLSA as to the application of any Exemptions.


Q:  What are the exemptions under the FLSA?


A:  The main exemptions under the FLSA include the following according to Section 13(a)1 of the FLSA and found in the CRF Section 541:


1 The Executive Exemption

2 The Administrative Exemption

3  The Professional Exemption

4 The highly compensated Exemption

5 The 7i exemption

6 The outside sales representative exemption

7 The Motor Carrier Act Exemption for interstate truck drivers.

8 Computer programmer/analyst exemption



Q: What is minimum salary I must be paid under the FLSA to be classified as exempt? 


A:  Until December, 2016, the minimum salary is just $455 per week, however, the DOL has not raised the minimum salary an employee must be paid to be exempt from overtime wages to $47,476.00.  Thus as of December, 2016, if you are an exempt employee, you must be paid $47,476.00 or you are legally entitled to be paid overtime wages for all hours worked over 40 in any workweek, regardless of the application of any exemptions.


Regardless, if you are a Blue-collar worker, involved in hands on repetitive type work you are entitled to overtime wages, and excluded from any exemptions.  Police, fire-fighters, first responders, paramedics also are excluded from any exemptions for overtime wages even if pursuant to a collective bargaining agreement.


Q:  I’m an IT technician, help desk person am I exempt from overtime wages?


A:  No, only systems analysts, programmers, and real Engineers are exempt.  Consult an experienced FLSA attorney such as Mitchell Feldman, Esq. if you are uncertain because the determination is not black and white and very fact intensive and guided by regulations and the DOL.


Q:  I work in a retail store, and am paid a commission my employer says I’m exempt from overtime wages, are they correct?


A:  Only if 50% of more of your compensation is attributable to commissions on sales.  Thus if you are selling and your base pay is $40,000 and only earn $10,000 in commission, the answer is clearly you are entitled to be paid overtime wages.  Any employer must make adjustments on a rolling basis and not just uniformly and arbitrarily classify your position as exempt under Section 7i because if you are not making sales, you are entitled to be paid overtime wages.  The employer must look at a representative period of time, such as a month, a quarter, etc. and test whether you meet the exemption.


Q:  I’m a manager so my employer says I’m exempt, is there a management exemption and are all managers exempt?


A:  No, the FLSA does not have a “manager” exemption.  First, any person who is labeled or titled manager, supervisor, director, etc., must supervise and direct the work of 2 or more full time employees or the equivalent (80 hours of subordinate hours) on a routine basis or will not be exempt for the periods in which the requirement is not met.  By way of example, a manager of a retail store, like Payless, who because of turnover, and shortage of staff, or payroll limitations does not each week have 2 full time employees, or does not have 80 hours of subordinate employee payroll would be nonexempt and entitled to overtime wages.  Again, an example is that the store manager’s full time assistant manger quits, and is not replaced and over the next several months the total work hours of the subordinate staff is an average of 75 hours.   The Manager, is then entitled to be paid overtime wages for all over hours worked in the in the “look back” period, during that representative period of time.   If the employer is not testing and auditing this requirement they will be found to owe the manager/employee double the wages owed in liquidated damages.


Q:  My employer has finally agreed to pay me overtime wages after I complained for weeks or months, has the employer satisfied the law, or is there anything else I am entitled for having to wait to be paid?


A:  Yes, any employer which does not pay overtime wages in the next pay period owes those employees double the sum in liquidated damages.  An employer must pay the overtime wages no later than the next pay period of the week the hours were incurred on a weekly basis pursuant to the FLSA.  So, if your employer did not pay you right away, they owe the liquidated damages as a matter of law.  The FLSA pay requirements are not subject to compromise.


Q: When I left the last company company I worked for, I was given a severance pay and signed a severance or separation agreement in which I released the employer from all wage claims and agreed not to make any claims against them, does this bar me from claiming my overtime wages or participating in a class or collective action?


A: NO, it is black letter law that severance and separation agreements cannot interfere with a person’s rights under the FLSA and cannot be waived by agreement. 


Q: We are paid bi-weekly, and when I worked 45 hours in one week, I was told to leave 5 hours early or take 5 hours of my choosing as comp time off in the second week so not to incur overtime hours and was paid only for 80 hours, is this proper and lawful?


A:  No!  The FLSA requires each work week to stand alone, and if you worked overtime in one workweek, then you are legally entitled and your employer is legally obligated to pay you a premium for the overtime hours.  Furthermore, employers may not avoid their legal duty to pay overtime wages by offering “comp time” in lieu of overtime premium pay. 


Q:  In my restaurant, the employer requires that tips be shared with cooks, is this legal?


A:  No.  Tips are the servers, and an employer may not exercise dominion and control over your tips or require tip sharing with non-tipped employees.  Moreover, if there is a tip pool, again, only tipped employees may share in the tip pool.  Although the tip money is yours, you may share the tips with whoever you want as long as it is completely voluntary.  In other words, any restaurant that charges you .25$ per plate or other charges which are given to the “back of the house” is per se unlawful.  Similarly, an employer may not withhold your tips as punishment.


Q: At work we are told to clock out or punch out at 5:00pm, but me and other employees continue to work off the clock as my superiors expect us to do whatever it takes in order to catch up and get ahead as the workload is overwhelming.   If I do not meet goals and quotas, I’m warned that my job is in jeopardy so many employees stay late and work through lunch, is there any right to overtime pay if my employer’s policy is that overtime pay must be approved?


A:  Yes, if your employer knows any employee is working off the clock and does not discipline the employee, or turns a blind-eye, they must pay the overtime wages.  Similarly, if your employer encourages, pushes, intimidates or coerces you to work off the clock, you are legally entitled to overtime wages AND double the sum in liquidated damages as this would be a prime example of a willful violation of the FLSA.


Q: My employer does not track all the hours I work, how can I claim overtime wages if I didn’t track the time?


A:  Every employer is required to track and record the hours of non-exempt employees.  An employer who does not track and record the hours of all non-exempt employees violates the FLSA and shifts the burden on the employer to disprove the overtime hours the employee represents has been incurred.  In lawsuits, evidence of the work hours can come from witness testimony, badge swipes, computer logins, email and phone call records, and other databases or video.


Q:  What does it cost me or what does a lawyer charge for handling an overtime or minimum wage claim, and will I owe the Defendant or my attorney fees and costs if I lose?


A:  The FLSA provides that a prevailing plaintiff is entitled to reasonable attorney’s fees and costs, not a prevailing party or a prevailing Defendant such that employers/defendants cannot obtain fees and costs under the FLSA unless you claim is determined to be frivolous.   This is a highly unlikely event and rarely if ever found by the court.  A prevailing plaintiff is someone who recovers any wages, whether through a settlement, mediation or court award, and thus if an employer agrees to compensate you, it must also by law pay your attorney’s a fee plus any costs incurred.  Most FLSA wage attorneys like Mitchell Feldman, Esq. operate under a contingency fee agreement or accept the fees paid by the Defendant, and if you lose the case, do not owe any fees or costs.  So, even if your wage claim is only $1000, most FLSA attorney’s will deem it worthwhile to take up your claim and seek recovery.

Mitchell Feldman, Esq., attorney has focused his practice since 2009 on representing clients in wage and hour claims under the FLSA and Florida Minimum Wage Act, and has successfully negotiated settlements of millions of dollars in wages for thousands of employees and clients.  If you have any questions about your rights under the FLSA or any state minimum wage act including the FMWA, contact the experienced, knowledgeable Florida and Georgia overtime and minimum wage attorney, Mitchell L. Feldman, Esq. for a free consultation.  Mitchell Feldman, Esq. handles FLSA overtime and minimum wage claims across the state of Florida and Georgia. Whether you live in Atlanta, Marietta, Norcross, Tampa, Naples, West Palm Beach, Tallahassee, Jacksonville or anywhere in either Georgia or Florida, I can assist you in your claim.  





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