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Overtime FAQ’S

1. What is the FLSA?

The FLSA is a federal labor law that deals with minimum wage, child labor standards, record keeping and requires that most employees be paid time and one-half for all overtime hours worked

2. What is overtime?

Overtime is any work performed in excess of 40 hours per work week If you are a non-exempt employee and work more than 40 hours in one week you are entitled to overtime pay. In general overtime pay is one and one-half time your normal rate of pay.

3. How do I know if I’m eligible for overtime pay?

In August 2004, the U.S. Department of Labor expanded the overtime protections for hourly and salaried employees. Under these new overtime regulations, employees who receive less than $23,660 per year are automatically eligible for overtime pay. On the other hand, employees who earn $100,000 or more annually and regularly perform exempt duties are no longer eligible for overtime pay. In general, unless you are truly an exempt (employee) you are entitled to overtime.

Those who are exemptfrom overtime (are not entitled to overtime) include:

  • Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools), outside sales employees, and certain skilled computer professionals. Employees of certain seasonal amusement or recreational establishments are also exempt
  • Farm workers employed on small farms
  • Casual babysitters and those who are employed as companions to the elderly or infirm
  • Employees who work in fishing operations
  • Employees who work in newspaper delivery
  • Employees of some small newspapers and switchboard operators of small telephone companies
  • Seamen employed on foreign vessels
  • Certain commissioned employees of retail or service establishments
  • Employees of movie theaters
  • Auto, truck, trailer, farm implement, boat, or aircraft salespersons not employed by the manufacturers
  • Railroad and airline employees, taxi drivers, some employees of motor carriers, seamen on American vessels, and local delivery employees paid on approved trip rate plans
  • Live-in domestic service workers
  • Announcers, news editors, and chief engineers of certain non-metropolitan broadcasting stations

Certain employees may be partially exempt from the overtime pay requirements. These include:

  • Employees of certain bulk petroleum distributors and employees who perform some agricultural commodity duties
  • Employees who don’t have a school diploma, or who haven’t completed the eighth grade, who spend part of their workweeks in remedial reading or training in other basic skills that aren’t job specific. These employees may be required to engage in these activities up to 10 hours in a workweek. Employers must pay normal wages for the hours spent in such training but don’t have to pay overtime premium pay for training hours
  • Employees of hospitals and residential care establishments that have agreements with the employees that they will work 14 day periods instead of 7 day workweeks

4. Can I be paid overtime if I’m a salaried employee?

Many employers tell their employees that salaried workers are ineligible for overtime payment. This may not be true. What is oftnr more important than if you are salaried or your job title is what type of work you perform. In other words if you are a general worker (i.e. a fry cook) and but your employer calsl you a “manager” you may still be entitled to overtime. The law doesn’t care what you called it cares what you do. Pursuant to the overtime law, all employees are entitled to overtime pay unless they are paid a salary of at least $100,000 per year and have duties that are exempted from overtime requirements

5. What if I’m an independent contractor?

Some employees who are classified as "independent contractors," “contract labor," "temporary workers” or similar terms are told that they are ineligible for overtime pay. This is because, under federal law, overtime pay is only available to "employees." However, many of these workers really are employees. If your employer retains the right to control when, where, and how you work, there's a good chance that you are eligible for overtime pay

6. What if I’ve been reclassified?

If you are suddenly receiving overtime payment because your position has been reclassified even though the duties are the same, there’s a good chance that you were due the overtime all along but your employer was unwilling to admit it. If you don’t receive back overtime pay then this can be considered a willful violation on the part of your employer.

7. What if I’m on commission?

Employees whose job doesn't require regular travel away from the workplace are generally entitled to overtime wages even if they are paid on commission. Many employers tell their employees that they are not entitled to overtime pay because they are a commissioned employee whether commission is the only source of income or in addition to a guaranteed salary, hourly rate or draw. Many employees who perform recruiting, inside sales, or business development work are due overtime pay.

8. How is over time calculated?

Overtime pay is one and one-half times your regular of hourly pay rate.

9. When should I be paid overtime?

Overtime should be paid for any hours worked over 40 hours in a workweek by a qualifying employee. Overtime must be calculated weekly, even though an employee may be paid every two workweeks. Some employers violate overtime law by not paying employees for all hours worked. Under Tennessee overtime law, employees must be paid for most work performed before clocking-in, during lunch breaks, while putting on safety or other protective wear, traveling between work sites after the start of the work day and after clocking-out. This also may include "on-call" time and time attending mandatory work meetings or training.

10. How do bonuses affect overtime payment?

Bonuses should be included in calculating overtime pay when they are tied to quotas, performance, or some other requirements. If your boss gives you a Christmas bonus, this would be considered a discretionary bonus and would not be required to be included in calculating your overtime rate.

11. Should I be paid overtime is I work more than 8 hours per day?

Not nessarily. Overtime is owed only after 40 hours worked in a workweek. Even if a person works 10 hours a day they will not get overtime unless they work more than 40 hours in the week. In other words, if you worked 10 hours a day but only 3 days in a week than you will not revieve overtime pay.

12. Can my employer pay me comp time instead of overtime?

Only government workers can receive comp time instead of overtime pay.

13. If I work on weekends or on holidays am I entitled to overtime pay?

Holidays and weekends are just like any other work day. Merely working on them doesn’t automatically mean you are entitled to overtime payment.

15. What if my employer says the overtime wasn’t authorized?

If your employer knew or reasonably should have known that you were working overtime then no matter what their stated policy, most employees are entitled to overtime pay. Not “authorizing” doesn’t allow the employer to get the benefit of work for free.

16. How can I prove my overtime if I didn’t keep track of the hours?

It’s your employer’s responsibility to keep track of the hours you work. If they fail to keep track the court can accept your testimony as to the actual hours worked.

17. What if my employer retaliates against me for filing a claim for overtime pay?

The FLSA protects workers against retaliation by employers. If you are knowingly harassed, demoted, or fired because you exercised your rights, then they could be subject to hefty monetary penalties.

18. If my employer refuses to pay overtime, what can I do?

Your best bet to assure your rights are protected is to contact an attorney experienced in labor law and overtime disputes. Feel free to contact our offices for a consultation.

19. How do the lawyers get paid?

The Higgins Firm doesn’t get paid until you do. You don’t have to pay any fees or retainers. Our payment is deducted from any settlement or judgment we are able to get for you.

20. How much time do I have to file a complaint or lawsuit for overtime pay?

Under the FLSA you have up to two years. In some cases it may be three.

21. What do I get if I win my case?

You can be get all unpaid overtime for two and in some cases, three years. You may also be awarded "liquidated damages" that can equal the amount of unpaid overtime you are owed. It’s also possible that you could be awarded attorney’s fees.

22. How long does it take for my case to be decided by the court?

Oftentimes an experienced attorney can get your case settled before it ever goes to court. Otherwise it can take months to even years for a case to be over.

23. What should I do if I think I’m owed unpaid overtime?

If you think you’re owed unpaid overtime wages, contact the The Higgins Firm at or call toll free 800-705-2121.

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