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Frequently Asked Questions About Labor & Overtime

In our overtime law practice, we have found that employees who have questions regarding unpaid overtime pay, unpaid wages or eligibility for overtime pay have many of the same questions for their lawyer. Many other workers who have questions relating to overtime pay are nervous or reluctant about calling an attorney. The questions and answers below are designed to assist workers who have questions about unpaid overtime or their eligibility for overtime pay in answering the most common questions the overtime lawyers are asked.

If you would like to have a free evaluation of your potential overtime case by an overtime lawyer, click here.


Q. What is “overtime”?

A. For most employees, overtime is the hours a person works over 40 in one workweek. Overtime is supposed to be paid at a rate of one and one-half times an employee’s regular rate of pay. For example, if you make $10 per hour, then you should be paid $15 per hour for all hours worked over 40 in a work week. For a free evaluation of your potential overtime case by an overtime attorney, click here.

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Q. What is the FLSA?

A. The FLSA is the Fair Labor Standards Act. It is the federal law that governs payment of minimum wage and payments for overtime. This is the law that requires that most employees be paid one and one-half times their regular rate or pay for all hours worked over 40 hours in a work week (a defined 7-day period). For a free evaluation of your potential overtime case by an overtime attorney, click here.

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Q. Who is entitled to overtime?

A. Most employees. The Fair Labor Standards Act (FLSA) requires most employers to pay their employees one and one-half times an employee’s regular rate of pay for all hours worked over 40 hours in one week. There are some exceptions, called “exemptions”, which exempt certain employees from being entitled to overtime pay. These include executives, professionals and some administrative personnel. In addition, some categories of professions are specifically excluded from receiving overtime pay. Among these are some computer professionals, some truck drivers and other job categories too numerous to list here.

A common problem we encounter is employer mischaracterization of job titles in order to try to designate non-exempt employees as exempt. Job titles are not important; job duties are. Exemptions are complicated and often subject to interpretation; it is important to get competent legal advice to determine whether or not you are eligible. If you would like an overtime lawyer to evaluate your eligibility for overtime pay, click here.

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Q. Am I still entitled to overtime even though I am paid a salary?

A. You probably are. The mere fact that an employee is paid a salary does not affect his or her eligibility for overtime pay. Your eligibility for overtime will not depend on your status as a salaried employee, but will depend on your job status as defined by your job duties. Some of the exemptions to the overtime requirement are discussed in the answer to the previous question. If you would like an overtime lawyer to evaluate your eligibility for overtime pay, click here.

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Q. Does it matter that I did not ask for or seek prior approval for overtime?

A. Usually not. If your employer knew you were working overtime or reasonably should have known it, then you are probably entitled to be paid for the overtime. Many employers will tell employees that they will not pay for overtime that is not approved. However, if they know employees are working overtime, even if it is not approved, they are supposed to pay the employees for the overtime work. The question to ask is: “Did the employer allow the work to be done?” If you would like an overtime lawyer to evaluate your eligibility for overtime pay, click here.

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Q. Does it matter that I never reported the time or asked for overtime?

A. Probably not. It is the employer’s obligation to control the work. If an employer does not wish work to be performed, it must forbid it or prevent it from happening. “Failure to ask” for overtime is usually not a defense for an employer in an FLSA case. If you would like an overtime lawyer to evaluate your eligibility for overtime pay, click here.

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Q. How do I prove that my employer knew or had reason to believe that off-the-clock work was being performed?

A. An employer will be held to know what it could have found out if it had paid attention to what its employees were doing. The legal standard is whether an employer could have learned of the employee’s activities by making reasonably diligent inquiries. It is a rare case in which an employer will be found to successfully claim that it could not have known that work was being done.

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Q. How do I prove the amount of time spent doing off-the-clock compensable activities?

A. The employer is required to maintain records of the time spent by employees performing compensable activities. If an employer does not maintain the required records, the employer will have the burden to dispute the reasonableness of the employee’s estimates. Thus, as long as the employee’s word is reasonable, what he or she estimates will count as accurate. For a free evaluation of your potential overtime case by an overtime attorney, click here.

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Q. Can my employer “average” the number of hours I work during a two-week pay period? For example, if I work 30 hours one week and 50 hours the next week, can my employer average that out as being 40 hours a week and not pay me overtime?

A. No. If you work more than 40 hours during any consecutive 7-day period, you must be paid overtime for any hours worked over 40. A 7-day workweek stands alone. The exception to this rule is that some professions, such as medical care employees, police officers and fire fighters, may be paid under special alternative work period arrangements. For a free evaluation of your potential overtime case by an overtime attorney, click here.

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Q. How is my rate of pay determined for calculation of overtime pay?

A. All compensation that you received is used to determine your rate of overtime pay. In addition to your base salary, any bonuses, commissions or incentive pay that you receive needs to be included to calculate your overtime rate. Whether you are paid by salary or on an hourly basis, your employer must include bonuses, commissions or other incentive pay to determine your overtime pay rate. For a free evaluation of your potential overtime case by an overtime attorney, click here.

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Q. I get “compensatory time” (“comp time”) instead of cash for overtime. Is this allowed?

A. No, unless you work for the government. Only the government is allowed to give its employees comp time in lieu of pay. Comp time instead of money for overtime is not usually permitted in the private sector. For a free evaluation of your potential overtime case by an overtime attorney, click here.

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Q. Can my employer just fire me if I sue for overtime pay?

A. Your employer is prohibited from taking any negative action against you for bringing an overtime claim. The FLSA specifically provides that it is “unlawful for any person … to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted any or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding.”

An employer who retaliates or discriminates against an employee in violation of this statute could be subject to fines or even criminal prosecution. The affected employee could be entitled to employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount plus attorneys’ fees and court costs. For a free evaluation of your potential overtime case by an overtime attorney, click here.

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Q. I have a severance agreement and/or signed a waiver saying I would not sue the company. Do I still have any rights?

A. Yes. You cannot waive your rights under the FLSA. Only waivers sanctioned by the Department of Labor or releases obtained during a private overtime lawsuit eliminate your rights to overtime compensation. If you would like an overtime lawyer to evaluate your eligibility for overtime pay, click here.

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Attorney Josef Buenker
The Buenker Law Firm
2060 North Loop West
Suite 215
Houston, Texas 77018
Telephone: 281-849-7388
Fax: 713-683-9940

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