Ask A Lawyer: How Can I Get Paid For Overtime?

how to get paid overtime

How can you get paid for all the hours you worked? Whether it's getting paid vacation days or lunch breaks, lots of AOL Jobs readers have concerns about this issue, so I'm going to answer three readers' questions in this column. Please note: I'm giving general answers based on federal law. Your state may have laws with more stringent requirements for employers, so always check with an employment lawyer in your state about your specific situation.
Q: I work for a government agency and if we get any overtime, say on a Tuesday, we have to flex it in time off that week so that we don't get paid for it. The time we get off is straight time not time-and-a-half. They make us flex our time off if we work more than an eight-hour day. Is this legal?

A: As long as the employer makes you take the time off in the same workweek, flex time is legal. Nothing in the Fair Labor Standards Act (the federal law regulating overtime) prohibits an employer from changing your schedule from day to day or week to week.

If the employer makes you take time off in a different week, that's a different matter entirely, called "comp time." If you've worked over 40 hours in any workweek, you're entitled to overtime pay (unless you're exempt). In the private sector, employers can never offer comp time instead of paying you time-and-a-half for all hours worked that week.

If you work for a state or local government agency, they may offer comp time instead of paying overtime. However, they must offer at least an hour-and-a-half for each overtime hour worked. The employer may not deny your request to take comp time off unless using it that day would unduly disrupt the agency's operations.

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Q: I work as an exempt professional. We receive paid holidays, but management says that the week of the holiday, if we are scheduled to have that holiday off, we must work a different day. Management says that this is a industry norm. I have checked with multiple companies in the same industry in our area, and others that I have worked at, and no one else has this policy. Can our company demand this of us?

A: There is no federal law requiring that employers give any paid holidays. However, most employers do have holidays when they are closed. As an exempt employee, you are supposed to be paid a salary whether or not you work 40 hours in any given week. That means you must be paid your full salary for any holidays off if you worked at all that week.

However, because you are exempt, your employer can make you work eight or even 80 extra hours that week with no extra pay. So yes, they can demand you work extra hours. Of course, that's the legal answer. The morale there must be awful.

What are the consequences if you don't make up the hours? If they deduct from your pay, then they may be making a critical mistake. They may lose the exemption, and you could be entitled to overtime for any hours you work over 40 hours.

They can retaliate in other ways that are legal. They can fire you, discipline you or make your life miserable if you don't comply with their lousy policy. Maybe it's time to update your resume.

One other possibility is that you're misclassified, and you might not really be exempt, so I'll address one final issue about holiday pay. If you're paid for a holiday that you didn't work and you aren't exempt from overtime, those hours don't count toward your overtime that week. For instance, if you worked 35 hours and were paid eight hours of holiday pay, you don't get 3 of those hours at time-and-a-half.

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Q: I am a government employee. My agency pays people in my job classification for working 37.5 hours a week; we have a daily 40-minute lunch break, but are not paid for 30 minutes of it each day, so that is where the missing 2.5 hours come from to keep us from getting paid 40 hours a week. However, most of us work way beyond even 40 hours a week, but do not receive compensation for it.

The time that employees at my level are allotted every day to get all they must get done is woefully inadequate. Most of us work through their lunch break, stay late and/or bring home assignments. Additionally, we are often pressured into attending workshops/in-services sans pay on our own time to sharpen our craft, and to volunteer our off time towards charitable or extracurricular activities.

We do have a union contract with the agency to work and be compensated for 37.5 hours a week. While I know this is an all too common scenario, have you any advice or help you can offer?


A. Based upon the information you provided (and which I've deleted for privacy purposes), you are an exempt professional, which means that you are probably not entitled to overtime. If your union contract says that you are entitled to extra pay for more than 37.5 hours worked, you may have a grievance that you can pursue through the union.

I'll address some other issues you raise. First, lunch breaks. You say you are docked 30 minutes per day for your 40 minute lunch break. No federal law requires pay for breaks over 20 minutes, so docking you for your lunch break (assuming that you don't work through it) is fair game. Because you're classified as "salaried exempt," they don't have to pay extra even if you work through lunch, unless your union contract says otherwise.

The other issue is requiring you to "volunteer" for charitable or other outside activities. The regulation on this issue states, "Time spent in work for public or charitable purposes at the employer's request, or under his direction or control, or while the employee is required to be on the premises, is working time. However, time spent voluntarily in such activities outside of the employee's normal working hours is not hours worked." In order for work to be voluntary, it must be truly that: done without any coercion or undue pressure from the employer. If non-participation adversely affects your employment or working conditions, it isn't voluntary and counts as hours worked.

As an exempt employee, that doesn't mean much. However, if it turns out that you are misclassified, you could be entitled to compensation for any non-voluntary "volunteer" activities, so keep track.

Have any questions? If you're willing to have it published, send an email explaining your situation to AOL Jobs.


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zabedav

Hi, i was recently fired from my job at Pep Boys Auto. I was a full time automotive mechanic for about 2 years, the whole time being there i was treated unfairly. I was ask to work on lunch break and wouldn't get paid, i was told to clock out after 8 hours of work and to not go over. This meant that i will have to complete a job off the clock or sometime give more work to do with out pay. And this was from a day to day bases. If i refuse i was told that i could get fired for refusing work. On 8/7/2012 i got injured on the job i was on workers compensation, my first day back was 8/27/2012. On this day i wasn't fully recover I told my manager that i was light headed and that i want to go home, i also stated to him that i want my PTO time that i had request for prior to my injury he ignored me and say that i never ask him. i stayed and work the day, i clock out after my 8 hours and finish my job that i was doing, when i went to hang up the keys for the car i had finish their was another work order in my box. I took the work order and the keys and could not complete this job because there wasn't any stick on wheel weights to balance the wheels. I told the service guy that i cant balance the wheel because their wasn't any wheel weights. when i was on the wheel alignment rack ready to align the wheels i got frustrated because all day i didn't eat lunch and plus i was feeling really dizzy, to add this was past two hours off the clock that i have been working. I didn't complete the alignment i back the car out and give the service guy the keys and i left. 8/28/2102 is my day off i come back on 8/29/2012, i was told to come to the main office from the manager, he and another lady was there she say to me if i know what i did and i told her the only thing i could remember was not completing the job, and i explain she told me to right that i acknowledged that i didn't do the alignment, then she told me to go home and Human Recourse will call me. the next day the manager call and say i was out of the system. I want to sue for over time pay, not treated fairly, and get fired for not completing a job off the clock.

September 18 2012 at 10:25 PM Report abuse rate up rate down Reply
Shawn

hey i have a fine that keeps me out of the military

what can be done

August 14 2012 at 1:11 AM Report abuse rate up rate down Reply
1 reply to Shawn's comment
EmployeeAtty

Hi Shawn. I'm not sure I understand the question, but if you have a question for the Ask A Lawyer column, please give more details and use the contact information at the end of my column.

August 15 2012 at 7:08 PM Report abuse rate up rate down Reply

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