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