Fair Labor Standards Act (FLSA) FAQ
1.
What is the FLSA?
2.
What is overtime pay?
3.
When should I be paid overtime?
4.
Should I be paid overtime is I work more than 8 hours per day?
5.
How is over time calculated?
6.
Are other monies I receive taken into consideration when calculating
overtime?
7.
Who is entitled to overtime?
8. Can my employer pay me comp time instead of
overtime?
9. Can I
be paid overtime if I am a salaried employee?
10. I didn't keep track of my overtime hours.
How can I prove how much overtime I have worked?
11. If my employer refuses to pay overtime,
what can I do?
12. How much time do I have to file a
complaint or lawsuit for overtime pay?
13. If my lawsuit for overtime pay is
successful, what will I be awarded?
14. How long does an FLSA case before a
decision is made on whether I am entitled to overtime pay?
15. How do the lawyers get paid?
16. What if my employer retaliates against me
for filing a claim for overtime pay?
17. What effect do the provisions of a
collective bargaining agreement have on FLSA overtime rights?
18. What is "Chinese Overtime"?
19. If I work on weekends or on holidays am I
entitled to overtime pay?
20. What if my employer asks me to work
overtime and I agree to straight time pay?
1. What is
the FLSA?
The FLSA is a federal labor law that provides within its
provisions for employers to pay the legal minimum wage, establishes
record keeping and child labor standards, and requires that most
employees be paid time and one-half for all overtime "hours worked."
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2. What is
overtime pay?
Overtime is defined as any work performed in excess of 40
hours per work week.
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3. When
should I be paid overtime?
Overtime should be paid for any hours worked over 40
hours in a workweek if you are a qualifying employee. A workweek
means a period of 168 hours during 7 consecutive 24 hour periods.
Overtime must be calculated weekly. This means that even
though an employee may be paid bi-weekly (receiving a paycheck for
two workweeks), overtime should be calculated based on 40 hours of
consecutive work in a week.
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4. Should I
be paid overtime is I work more than 8 hours per day?
No, overtime is owed only after 40 hours worked in a
workweek.
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5. How is
over time calculated?
Overtime pay is defined as one and one-half times your
regular rate of hourly pay. For example if your normal rate
or hourly pay is $10 per hour, your overtime rate of pay would be
$15.
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6. Are
other monies I receive taken into consideration when calculating
overtime?
Bonuses should be included in calculating overtime pay
when they are tied to performance, quotas or other requirements and are
not discretionary. If your boss gives you a Christmas bonus, this
would be considered a discretionary bonus and would not be
required to be included in calculating your overtime rate.
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8. Can my
employer pay me comp time instead of overtime?
The only time an employer can pay comp time instead of
overtime is when the employee is a government worker.
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10. I
didn't keep track of my overtime hours. How can I prove how much
overtime I have worked?
Your employer has the responsibility of maintaining
accurate and complete records of the time worked by their employees.
If for any reason your employer cannot product records to substantiate
overtime pay, the employee is entitled to recover based on "good faith,
reasonable and realistic estimates."
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11. If my
employer refuses to pay overtime, what can I do?
The best and most successful way to recover overtime pay
is retain an attorney experienced in handling overtime wage claims.
Contact our office for a free, no obligation consultation.
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12. How
much time do I have to file a complaint or lawsuit for overtime pay?
Under the FLSA you can recover overtime pay up to the two
years prior to the filing of a lawsuit. If your employer is
found to "knowingly, willfully or recklessly" violate FLSA laws, you may
be able to recover overtime wages from as far back as three years prior
to the filing of a lawsuit.
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13. If my
lawsuit for overtime pay is successful, what will I be awarded?
You can be awarded all unpaid overtime for two and in
some cases, three years. A judge may also award "liquidated
damages" that can equal the amount of unpaid overtime you are owed.
A judge may also award any attorney's fees and expenses you have paid
your attorney to handle your lawsuit.
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14. How
long does an FLSA case before a decision is made on whether I am
entitled to overtime pay?
There are many factors that affect how long the process
takes. In most cases an experienced attorney can settle your
case before a trial begins. However, if the case is not settled
before trial the process can take several months to several years.
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15. How do
the lawyers get paid?
Donald W. Fohrman & Associates, Ltd., handles
overtime cases on a contingent fee basis. This means that you pay
no upfront fees or retainers. Our fees are deducted from any
settlement or judgment you may receive.
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16. What if
my employer retaliates against me for filing a claim for overtime pay?
The FLSA provides that you employer cannot retaliate
against any employee who exercises their rights under the FLSA. If
your employer knowingly and willfully harasses, demotes or terminates
you in retaliation for exercising your rights under the FLSA, he can be
subject to large fines. The FLSA also provides that if the
retaliation is extreme enough, your employer can also be subject to jail
time.
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17. What
effect do the provisions of a collective bargaining agreement have on
FLSA overtime rights?
Collective bargaining agreements have no affect on your
rights to overtime pay under the FLSA.
Your rights under the FLSA cannot be waived or diminished
under a collective bargaining agreement. In fact, if your collective
bargaining agreement is more favorable than the provisions of the
FLSA, you would be entitled to whatever rights and benefits you are
entitled to under your agreement.
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18. What is
"Chinese Overtime"?
If an employee is paid a a flat or fixed salary each
workweek for hours that change from week to week, the
employer may use an overtime calculation method called "fixed salary for
fluctuating workweeks". This is is also know as "Chinese
overtime".
While computing overtime using this method is to the
benefit of the employer, certain requirements have to be met. In
order for the employer to apply the "Chinese overtime" method to
calculate overtime, the employee must have a work schedule with
fluctuating hours. The employee must also be a paid a fixed salary for
straight time for all hours worked in a work week. An employer
cannot make any deductions from the fixed salary if the employee works
less than 40 hours per work week.
Additionally, the employee must be paid at a rate
high enough that the regular rate will never be below the federal
minimum wage.
In calculating overtime, the regular rate is
determined by dividing the fixed salary by the number of hours worked
that week. Since the employee is already being compensated at straight
time for all the hours worked, overtime would then be paid at half-time
instead of time and one-half.
The result is that straight time is only paid once, so
the overtime hours will be paid at half the regular rate. In a
workweek when the employee's number of overtime hours worked is high,
the regular rate will be lower. The overall hourly cost per hour
for the employer will be lower. However, if an employee works less than
40 hours a week, the employer must pay the full fixed salary.
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19. If I
work on weekends or on holidays am I entitled to overtime pay?
Hours worked on weekends and holidays are treated like
hours worked on any other day of the week and are not subject to
automatic overtime pay.
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20. What if
my employer asks me to work overtime and I agree to straight time pay?
Neither you or your employer can waive your right to
overtime pay. If you work overtime and you are a
non-exempt employee, your employer must pay overtime pay for any
overtime hours worked. You are also entitled to overtime pay even
if your employer states they have a "no overtime" policy but allows you
to work overtime anyway.
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