If you have been laid off, fired or quit a job in the last three years or you are currently working and know you have not received the proper wages for the work you have done, you may not know what to do and think that your employer will never pay you your rightfully earned wages. However, you do have legal protection under the Fair Labor Standards Act to not only be entitled to fair wages, but also to make a claim for back pay in wages up to three years in the past. Wage disputes are complex and often require the help of an experienced attorney.
If you think your employer has in some way withheld wages from you, contact the wage dispute law firm of Dunham & Jones, and our overtime attorneys will do a free and confidential evaluation of your claim.
You may be owed wages for working off the clock, receiving comp time instead of overtime, your overtime rate may have been inaccurate, or you may have been wrongly exempt from overtime.
At the overtime firm of Dunham & Jones, we represent workers from all industries, including janitors, paralegals, waitstaff, call center workers, packaging plant workers, HVAC workers, translators, police officers, offshore oil platform workers, emergency medical technicians, and many others.
Retrieving wages from an employer can be difficult for an employee to do on their own. Their employer may give a litany of excuses as to why you are not owed overtime or back pay, but your employer’s word is not the law, and a majority of workers are protected by the law to receive fair pay.
If you think you may have a claim for unpaid wages, you need to call immediately or fill out the contact form. Many of our clients came to us thinking they did not have a claim and were surprised to find out they were owed thousands of dollars by their employer, we will work with you to retrieve all the money you are owed. Call our offices now to quickly recover your wages before it is too late to make a claim.
Common Overtime Questions
When can I receive overtime?
While not all employees in the workforce are eligible for overtime, it is estimated that a vast majority are. Eligible employees are known as “nonexempt.” Exemption is based on job duties and a salary test.
Federal law imposes a weekly overtime standard, meaning that overtime is given on a per week basis, rather than per day or monthly. Texas does not have a daily overtime standard like some states.
Overtime payment kicks in when a worker exceeds 40 hours in a workweek. The FLSA defines the workweek as a set 168 hour period, or a period of seven consecutive, twenty-four hour days. The employer may set the workweek to begin at any time, but it is standard to set the beginning of the workweek as Monday.
When the workweek is established, it is to remain fixed regardless of how many scheduled hours the employee is to work. The workweek can be changed if it is intended to be a permanent fix, and not just a scheme to avoid paying overtime hours.
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How do I know if I’m eligible for overtime pay?
If you are a non-exempt employee, you must receive overtime pay.
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Who is considered an exempt employee?
Bona fide executive, administrative, professional and outside sales employees are considered exempt employees under the FLSA.
To be exempt, employees must pass specific tests which pertain to their job duties and salary.
For the executive, administrative, and professional exemption, the exempt employees must be compensated no less than $455 per week. Employees who meet all exemption requirements do not have to be paid overtime regardless of how many hours they work overtime.
Being paid salary does not automatically exempt workers from receiving overtime, nor does title alone.
In general, the exempt employees are highly compensated, highly skilled, or the highest ranking.
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What is an executive exempt employee?
Employees who fall under the executive exemption tend to have what is known as “true executive power.” This means the employee has the ability to hire and fire employees, or at least make strong suggestions regarding the hiring, firing, or changing in status of an employee. The executive exempt employee makes judgements and independent decisions related to the operations of the business, and their job requires direct work with the management or handling of the business’ operations.
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What is an administrative exempt employee?
An employee who falls under the administrative exemption must perform non-manual or office work which is closely related to the management or handling of the general operations of the business. The administrative exempt employee must be able to use authority which the FLSA describes as “independent discretion and judgement” in regards to matters of significance.
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What is a professional exempt employee?
An employee who falls under the Learned Professional Exemption is one whose primary duty must involve performing work that requires an advanced knowledge which is predominately intellectual in nature and consistently requires the exercise of discretion and judgement. The FLSA requires that the employee be in the fields of science or learning and that the acquirement of the advanced knowledge be from an extended course of specialized intellectual instruction.
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How do I calculate my overtime pay?
Overtime is time-and-a-half of your regular rate. Determine the regular rate of pay by dividing the total weekly pay by how many hours worked. This does include bonuses and commissions received. This number is your regular rate, and overtime is determined by that regular hourly rate times 1.5.
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Can my employer fire me for filing an overtime lawsuit?
The FLSA protects workers against employee retaliation. It is unlawful for an employer to terminate or reprimand against an employee because they have filed a complaint under the Fair Labor Standards Act. The employee is protected whether the complaint was made orally or if it was produced in writing.
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Is it my employer’s discretion whether or not I receive overtime pay?
The employer is not allowed to determine whether or not an employee is eligible for overtime. The FLSA is the determiner for overtime pay.
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Can I receive “comp” time instead of overtime pay?
Comp time cannot be used to replace overtime in most cases. Under federal law, the practice of replacing comp time for overtime is generally illegal. The exception is that state and local government institutions are allowed to offer compensatory time.
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Do I receive overtime pay for working on weekends, nights, or holidays?
The Fair Labor Standards Act does not make a special overtime provision for receiving overtime pay for working on holidays, Saturdays, Sundays, unless working on these days causes the employee’s work hours to go into overtime.
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What if I work 30 hours one week and 60 hours the next week? Is overtime calculated over a monthly period?
Overtime is always calculated by the hours worked within the workweek set by the employer.
In some cases, an employer may use the “fluctuating workweek method,” also known as “Chinese Overtime.”
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What is Chinese Overtime?
The variable workweek or halftime method is sometimes known as Chinese overtime. It is calculated by dividing your fixed salary pay by the hours you worked that week, and applying that rate to your overtime hours.
With overtime, your regular hourly overtime rate is 1.5 your regular rate. With the fluctuating workweek method, an employee’s weekly salary is fixed and their regular rate is calculated by dividing the hours worked that week by their weekly salary.
According to the fluctuating workweek method, you will receive a fixed salary regardless of how much or how little you work that week. If an employee paid on the fluctuating workweek method works overtime, their weekly salary is divided by the total number of hours worked and that hourly rate is used to determine their overtime.
For instance, suppose an employee is paid $500/week and works 40 hours, which would make their hourly rate $12.50/hour. If that same employee works 50 hours a week, they will receive $10 per hour for their 10 hours of overtime instead of the premium overtime rate of 1.5 which would be $18.75 an hour.
If the employee worked 60 hours in a week, their pay over 40 hours would go down to $8.33 an hour for the additional 20 hours of work over 40 hours. The fluctuating workweek method is legal as long as there is a clear understanding between employee and employer that this method will be used. Under no circumstances can an employee have their pay docked when less than 40 hours a week are worked. The employee is always entitled to their fixed weekly salary.
Also, at no time can the employee’s hourly wage dip below minimum wage standards.
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I receive a salary instead of hourly pay, does that mean I am not eligible to receive overtime?
It is a common misconception that salaried employees are exempt from overtime pay. To calculate overtime for a salaried employee, you would need to determine what their weekly salary is. Divide their weekly salary by 40 to figure out their regular rate of pay per hour. Whatever their regular rate is, that is multiplied by 1.5 to determine their overtime rate.
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Can I be denied overtime because I did not receive authorization to work those extra hours?
Even if your employer did not authorize your overtime, they cannot opt out of paying you for it. Sometimes, employees are forced to work overtime to finish projects. To prevent their hours from going into overtime, they may work during their unpaid lunch break to complete a project. This is not allowed, according to the FLSA, because even the unpaid lunch break must be compensated for hours worked.
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Can I waive my right to overtime so my employer will allow me to work more hours?
Even if an employee agrees to waive overtime, the agreement is void according to the Fair Labor Standards Act.
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