10 Tricks Employers Use To Cheat Workers Out Of Overtime
Most employees are entitled to be paid overtime for any hours worked over 40 in one week (and no, your employer can't average two or more weeks together). Unless you work for a tiny and purely local employer, or fall within a specific exemption, your employer is legally required to pay you time and a half for all overtime worked.
But some employers, in an attempt to cut costs, are using tricks to avoid paying overtime. As reported by AOL Jobs and USA Today, the number of lawsuits filed by employees alleging that they were owed overtime pay is skyrocketing; there was a 32 percent increase last year, compared to 2008.
As an employment attorney, I've seen lots of maneuvers, but below are the 10 most common tactics that I've seen employers use to cheat workers out of their hard-earned overtime pay:
1. Tell the worker that because he earns a salary, he isn't entitled to overtime.
Many employers and most employees think that, once you're paid on a salary basis, you lose your right to overtime pay. That isn't the case. Unless you make at least $455 per week (there's a bill pending in Congress to try to raise this amount), you don't fall within any salary exemption. Plus, you still must fit within one of the exemptions to the Fair Labor Standards Act or you must be paid for all your time.
2. Improperly classify the worker as an 'independent contractor.'
Most people classified as independent contractors are really employees. If your company controls the time, place and manner of your work; if you can't work for other companies, can't hire your own assistants, answer to company work rules and the company sets your hours, the law would probably consider you an employee. If you signed an independent contractor agreement and think you're misclassified, you are losing more than your overtime. You are also paying your company's share of employment taxes.
3. Require workers to log in hours 'off the clock.'
I've heard of employers that force employees to clock out for lunch, even if they work through lunch. Or they demand employees clock out and stay late. Maybe there's no time clock at all, and you're asked to sign a timesheet every week saying you worked 8 hours a day. This is your employer trying to put the lie on you. That way, if you do sue and you signed a paper or clocked in and out, they'll claim you are lying about your overtime.
4. Combine non-exempt duties.
Even if you have an exempt job, some employers are trying to save money by cutting non-exempt jobs and giving those duties to exempt employees. Double the work, same pay. If your managerial job also requires you to be the receptionist, you are probably entitled to overtime pay for your non-exempt duties.
5. Expect the employees to be on-call.
If you have to jump anytime there's an emergency and if you can't use your "free" time freely, you may be entitled to be paid for your time on-call. If the company says you have to stay within a certain mileage from the office, that you must return calls within a short time (such that you can't even go out and cut the grass or go to the movies if you want), or if the calls come in every 10 minutes, so that doing anything else is impossible, you are probably entitled to be paid overtime for your on-call time.
6. Give off-hours duties.
This is how it works: Employers require employees to arrive at the workplace several minutes before clocking in to put on a uniform or do other prep work, have before-hours or after-hours meetings, mandatory trainings, and other duties that are off the clock. If you're in this situation, you are probably entitled to be paid for any time you are mandated to be present at work.
Truly voluntary training, such as going to an outside company to get a certification you want to increase your chances of promotion, even if the company pays for it, is probably not work time such that you're entitled to be paid. If you're told that failure to attend the training will result in some adverse consequences, it isn't voluntary.
7. Expect the workers to do work from home.
If your job requires you to answer emails, respond to texts, or otherwise work from home after you leave, you are probably entitled to be paid for those hours. No, you can't charge for time you took a shower, ate dinner, or watched "The Office," no matter how much it reminds you of your own office, but you can charge for the time you actually spent working. A recent survey by Good Technology found that most Americans do an extra 30 hours of work per month from home.
8. Tell workers to wait before clocking in.
If your employer requires you to come in, only to make you wait until they need you before you're allowed to clock in, you're probably entitled to be paid for your waiting time. If you aren't told you can leave the premises, you can't do anything else like go shopping or eat lunch, and you must be available when the work comes in, you are working. If you work in the copy room and play online checkers while waiting for the next job to come in, you're probably entitled to be paid for that time.
9. Require workers to volunteer.
Many companies are involved in civic and charitable work, and that's great. They may ask for volunteers to help with, say building houses for Habitat for Humanity. If you can volunteer or not, without consequences, then you're working for free. But if your employer requires you to participate, supervises your work, and if you will suffer consequences for not "volunteering," you are likely required to be paid.
10. Pretends not to know workers are toiling through lunch.
Your employer may look the other way if you work through lunch or after you clock out. That doesn't excuse the employer from paying overtime. They may claim they didn't know, but if the company suffers or permits you to work extra hours, you must be paid. That's why many companies have written policies that require discipline, even termination, for failing to report all hours worked.
1. Write it down.
Keep track of all your hours worked, even if your employer requires you to submit less than all your hours. Write down what you did, especially if it was during lunch or at home. If you have a diary or calendar, write it in there. Don't keep your records at work, because if you leave them in a drawer or on your work computer and are fired, they can be conveniently lost. Keep them in your pocket, purse or briefcase, and take them home when you leave. The Department of Labor has a handy smartphone app you can use to keep track (but if your smartphone belongs to the company, it's best to use something you own instead to keep track).
3. Report misclassification.
If you are misclassified as an independent contractor, the IRS will do the work for you. There's a form called the SS-8 that you can fill out to have them determine whether or not you're misclassified.
3. Ask the Department of Labor.
The Department of Labor is available by phone and email to answer questions and take complaints of overtime violations.
4. Contact a lawyer.
The consequences of violating the overtime requirements are that your employer might have to pay double the amount owed you, plus attorney's fees and costs. A lawsuit could include all your coworkers who were underpaid. When in doubt, contact an employee-side employment attorney in your state to find out your rights.
Beware of Future Consequences!While your current employer can't retaliate against you for bringing overtime claims against them, potential employers might be allowed to retaliate. At least one federal court has ruled that the anti-retaliation provisions of the Fair Labor Standards Act do not apply to prospective employees. If you're a named plaintiff in an overtime suit, or if you answer honestly that you participated in a class action against your employer for overtime, you may lose future job opportunities.
If you can resolve your overtime claim without filing a suit, such as having a lawyer or the Department of Labor reach out to your employer to resolve the matter, you might avoid this tricky retaliation loophole.
Do you have a problem with your employer? Do you have a question about your legal rights in the workplace? Email Donna Ballman, care of AOL Jobs. Make sure to include a description of your problem, as full as you feel comfortable. Keep in mind that anything you include in your email could be reprinted and responded to publicly. It will not be confidential. Govern yourself accordingly.
Also note: Writing to Ms. Ballman at AOL does not create an attorney-client relationship. Ballman can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state.
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Donna Ballman’s new book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was recently released and is currently available for purchase. The book won the Law category of the 2012 USA Best Book Awards. Donna is the award-winning author of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She’s been practicing employment law, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and employment law issues in Florida since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011 ABA Blawg 100 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.
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