Paralegal and Secretaries not getting paid overtime

Thousands of paralegals are owed overtime wages but are treated as exempt employees. Until 2004, many paralegals were considered exempt employees and thus were required to work overtime without being compensated. The Fairpay Overtime Rules passed by the United States Department of Labor has unclassified many paralegals as exempt from overtime compensation.

To be an exempt employee, you must meet specific criteria. Employers may say that their paralegals fall under Administrative Exemption, but this is not necessarily true. Paralegals would have to work with full authority and under their own discretion to fall under this exemption. Since most paralegals are technically being supervised by attorneys, then they do not qualify for Administrative Exemption, which means they should be paid overtime wages. Paralegals may also be classified as “learned professionals”, another category which must meet strict guidelines. To be considered a learned professional, one must have obtained an advanced degree which is used in their work. For example, a paralegal who uses their advanced degree in their job may be exempt from overtime. Most paralegals’ scope of work does not extend beyond what is required of an associate program which is not an advanced degree, therefore many paralegals are not exempt and can earn overtime pay.

If you are performing work duties outside of your normal hours, such as taking calls at home or responding to work related text messages, or completing work at home, then you may be eligible for overtime pay. Being a salaried worker does not automatically exempt you, because there are other specific requirements which must be met. If you work more than 40 hours a week, and believe you are somehow not receiving the overtime pay you deserve, then call Dunham & Jones to look at your circumstances and provide you with professional, legal advice.

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Common Overtime Questions from Secretaries, Paralegals and Legal Assistants

If I am answering emails and making work-related phone calls after I am no longer on the clock, shouldn’t I be paid for these hours working?

If you are still fulfilling secretarial or paralegal duties after hours, then you are entitled to be paid for the time you spent working. You can show your employer proof of the hours you worked by documenting the emails you sent or received, keeping track of work-related phone calls, noting any travel that was done for your job duties, or producing evidence of meeting with clients outside the office when you are no longer “on-the-clock”.

Your rights are listed under the Fair Labor Standards Act, which clearly states that non-exempt employees are entitled to pay for all hours worked, including overtime. With the evidence that you have continued to work off-the-clock, your employer should comply and reimburse you for those unpaid hours. If you are still unsure about how to move forward, you should speak with an attorney who has experience in handling unpaid wages claims.

I am a paralegal that regularly works overtime during the week. The company I work for told us that we would be receiving a $5,000 bonus, but that we would only receive this bonus if our company thought we had earned it. My overtime rate is still based on my hourly rate of $12. Does this add up?

If your bonus is given to you based on performance, then it needs to be calculated into your regular rate of pay. This would also increase your overtime rate of pay. The “bonus” counts as part of your compensation. If your “bonus” is $5,000 then your overtime rate should be more than $18 an hour.

An hour and wage attorney can do the correct calculations to determine what your overtime rate should be. The FLSA expresses that non-discretionary bonuses must be included when calculating an employee’s “regular rate” of pay. If you are expecting this $5,000 bonus, especially if you are required to meet certain conditions in order to receive it, then it is considered a non-discretionary bonus.

Your $5,000 bonus would only be considered discretionary if the bonus was not pursuant to a prior agreement, contract, or promise. Any bonus that encourages employees to work more efficiently, rapidly, or steadily is to be considered part of an employee’s regular rate.

Are interns required to be paid?

The FLSA does have regulations on paid and unpaid internships. Unpaid internships must meet certain criteria to be excluded as employment. An internship should be similar to training which is beneficial to the intern. The internship cannot displace actual employees, and the intern should work under close supervision. The employer cannot derive immediate advantages from working with an unpaid intern, and at times the unpaid intern may even impede on progress of the employer. An unpaid intern is not guaranteed employment at the conclusion of their internship, and there is an understanding between employer and intern that the internship is indeed unpaid, and the intern is not entitled to wages.

Employers often take advantage of unpaid internships and will have interns do work that is advantageous to the employer. If an intern is not learning or benefiting from an unpaid internship, there is a chance that an FLSA regulation is being violated.

Learn more about the protections interns have under the FLSA by speaking with an hour and wage attorney. Dunham & Jones will evaluate your case during a free consultation. Call now to set up an appointment.