Frequently Asked Questions about Collecting Unpaid Overtime
By Neil E. Klingshirn
- Am I entitled to Overtime Pay?
- Which employers are covered by the overtime laws?
- What is does it mean that an employee is engaged in commerce or in the production of goods for commerce?
- My employer is not covered by the FLSA. Does that mean that I will not receive overtime?
- My employer is covered by both the state and overtime law. Does that mean I will receive overtime?
- I work in an office building. Are there any exemptions that apply to me?
- Is the Executive exemption to overtime limited to the top two or three people in a company?
- What are the duties that qualify for the Administrative Exemption from overtime?
- Who is covered by the Professional exemption to overtime payment?
- What does it mean to be “paid on a salary basis?”
- My pay and hours vary from week to week. What is my overtime rate?
- I earned $800 and worked 50 hours in a week. Does that mean that my overtime rate is $24.00 (1.5 x $16.00 an hour)?
- I am pretty sure that I was not exempt from overtime. How much unpaid overtime can I recover?
- Can I recover anything else?
- Can you give me an example of how the statute of limitations and liquidated damages work.
- What should I do if I believe I am entitled to unpaid overtime?
- Where can I find more information about collecting unpaid overtime?
- I want to consult an employment attorney to explore collecting unpaid overtime. Do you have any suggestions?
- Professional, and
- Computer Employees
- managing the business or a portion of it;
- Directing the work of at least two or more other full-time employees or their equivalent; and
- Having the authority to hire or fire other employees, or giving your employer suggestions and recommendations as to the hiring, firing, advancement or promotion of other employees.
Your duties are "administrative" if your primary duty:
- is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and
- includes the exercise of discretion and independent judgment with respect to matters of significance.
- Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction; or
- Requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.
The salary may be all or part of the employee's compensation. In other words, additional compensation besides the salary, such as commissions on top of a salary, is still pay “on a salary basis,” so long as the employee receives at least the minimum salary every pay period. For example, guaranteed pay each week of $455 or the amount of commissions earned that week, whichever is greater, is still pay on a salary basis, even if the commission earnings vary each week.
The key to proving a salaried payment where the earnings may fluctuate is an agreement by the employer beforehand to pay the minimum amount of $455 per week. Thus, an employee whose pay is tied solely to production, like commissions or a piece rate, will not be paid on a salaried basis even if he or she more than $455.00 per week.
Overtime is one and one half times the “regular rate” of pay. Your
regular rate of pay is the total amount that you earn during a work
week divided by the total number of hours that you worked that week.
Therefore, if your pay or hours vary from week to week, so will your
For example, if you earned $700 and worked 55 hours in a week, your regular rate of pay is $12.72 an hour. If you work 59 hours and earn $725 another week, your regular rate actually drops to $12.35 an hour.
- The number of overtime hours that you worked in each pay period;
- The amount you earned in each pay period; and
- Whether your employer had a good faith, reasonable basis for believing that you were exempt from overtime; and
- Whether your employer’s failure to pay overtime was "willful" or not.
Sure. Let’s use three examples. Each one assumes that you were not exempt from overtime.
In the first example, assume that your employer thought that you were exempt and obtained an opinion from the Department of Labor or qualified employment attorney to verify that belief. In that case, you can collect unpaid overtime for the two years prior to filing suit, but the court will double that amount as liquidated damages.
Second, assume the same set of facts, except that your employer did nothing to verify its belief that your were exempt. In that case, your employer probably cannot prove that it had a reasonable basis for believing that you were exempt, even if it in good faith believed it was true. In that case, the court should award liquidated damages, or double the amount of the unpaid overtime from the last two years.
Finally, assume that your employer knew that you were not exempt but chose not to pay you overtime in the hopes that it would not get caught or sued for an overtime violation. That violation would be “willful,” so the court would extend the statute of limitations to three years. An employer cannot claim a good faith, reasonable belief that you were exempt if it willfully violated the federal overtime law, so you would receive liquidated damages equal to twice the amount of unpaid overtime.
You should contact an attorney or the DOL quickly, especially if you no longer work for that employer. You can only recover overtime for, at most, the three years prior to filing suit. If you wait 18 months to file suit, you can only recover the remaining 6 or 18 months of unpaid overtime.
You should find out first, whether you are likely exempt from overtime or not and, if not, how much you would be entitled to receive.
Mel has collected Questions and Answers, Wiki articles and Blog articles about non-competition agreements. Wiki articles include:
- Exemptions for Executive, Professional, Administrative Employees
- Overtime exemption for Computer Professionals
- Commissioned retail or service sales exemption to overtime payment
- Minimum Wage and Overtime Exemptions
- The Work Week
- Hours Worked Under the Fair Labor Standards Act for calculating Overtime
- Regular Rate of Pay for Calculating Overtime Pay
- Ohio Minimum Wage with Treble Damages and Attorneys Fees
- Movie Theaters are exempt from federal overtime laws
- Outside Sales Employees Exemption from Overtime and Minimum Wage
- Overtime pay for On Call Time
If you still cannot find the answer to your question, Ask mel and we will send your question to attorneys in your state.schedule a consultation with Fortney & Klingshirn you live in Northeast, Central or Southeast Ohio (that is, near Akron, Canton, Cambridge, Cleveland, Columbus, Lorain, Marietta, Youngstown or Wooster Ohio).
If you live live elsewhere, we suggest that you:
- search for a lawyer on this site;
- search the National Employment Lawyer's Association's (NELA) attorney directory;and
- search the attorney directory of a state affiliate NELA, such as the California Employment Lawyer's Association. To find an affiliate in your state, search for "[State] Employment Lawyer's Association; or
- consult the general "Bar Association" in your area, which will probably have an attorney referral service. Ask for attorneys who practice employment law; and
- Write and speak on employment law topics;
- Are recognized by their peers (for example, Super Lawyer and "AV" ratings); and
- Are Board Certified in employment law in those states that offer specialty certification.
Contact Neil Klingshirn
AV rated Super Lawyer and Employment Law Specialist