Florida Overtime Attorney
Unpaid Wages, Exemptions & Employee Misclassifications
For most full-time employees, any work performed over 40 hours in a week should be paid at time and a half, or one and one-half times the employees regular rate of pay. One of the biggest reasons that employees do not get paid the overtime they are due is because they are misclassified as exempt from the overtime rules. Whether an employee is unintentionally misclassified by an employer who doesn’t know the rules, or deliberately misclassified by employers who break the rules to avoid paying overtime, Florida overtime attorney Robert S. Norell stands up for the rights of workers and helps them get the compensation they are entitled to by law.
White Collar Overtime Exemptions
The requirement to pay overtime is found in a federal law known as the Fair Labor Standards Act, or FLSA. This law provides exceptions from the overtime requirement for certain white collar employees, specifically executive, administrative and professional employees. However, even though you may think you are an executive, administrative or professional employee, or that is what your employer calls you, unless you meet the criteria set out in the law for a specific exception, you are entitled to overtime at time and a half your regular rate for every hour worked over 40 in a given week.
To be exempt from overtime, you must be paid on a salary basis and be paid at least $455 per week. In addition, each exemption has its own set of criteria related to the job:
- Executive – An exempt executive employee has a primary duty which is managerial in nature, for example directing the work of at least two full-time employees. Executive employees exercise a great deal of independent judgment in their job, and frequently have the ability to hire and fire or at least make recommendations on hiring and firing.
- Administrative – Administrative employees perform office work or other non-manual labor which is directly related to the general business operations or management of the business. An exempt administrative employee does not primarily engage in producing the company’s product or performing its service functions.
- Professional – A professional employee is one who is required to have advance knowledge in the field in order to perform his or her primary duty. The work of the professional is primarily intellectual in nature and typically requires the exercise of independent judgment and discretion. The FLSA includes both learned professionals and creative professionals within this exemption.
Florida Overtime FAQs
In our mission to help wronged employees recover unpaid wages, we understand that each of our clients are individuals with their own particular set of circumstances. This page gives you the chance to learn from the experience of others and be prepared to discuss your circumstances with us. You are always welcome to request a quick consultation.
What is overtime pay?
Overtime pay is additional compensation for working in excess of 40 hours per week. Usually, overtime pay is one and a half times your hourly rate for each hour worked 40 hours per week.
What are unpaid wages?
Unpaid wages are wages that are earned by an employee, but for some reason, are not paid by the employer. Unpaid wages can be a portion of your pay that has been incorrectly withheld. Unpaid wages can also be your final paycheck from your employer that has been wrongfully withheld.
Who is entitled to overtime pay?
Employees of covered employers are entitled to overtime pay, and many are not aware of their rights. Employees are entitled to overtime pay unless they fit into a specific exemption excluding them from such pay. In general, the exemptions are for “executive,” “administrative” and “professional” positions. Whether you fit in one category or the other is dependent on many factors. It is best to get an attorney’s advice on this matter.
What is a covered employer?
The following types of employers are covered by the Fair Labor Standards Act (FLSA):
- Federal, state or local government agencies
- Hospitals or institutions engaged in the care of the sick, aged, or the mentally ill
- Pre-school, elementary or secondary schools, or institutions of higher learning
- Companies and organizations (for-profit and non-profit) with an annual dollar volume of sales or receipts in the amount of $500,000 or more
What if I agreed to work overtime but not be paid for it?
It doesn’t matter. No agreement that limits your right to overtime can be enforced.
What if I have no written records or proof of the hours I worked?
It is not necessary that you have any detailed records. It is your word under oath that is essential. The employer will need detailed records and documents to try and disprove your overtime claim.
What am I entitled to receive if I file suit and win?
You are entitled to the overtime wages that you should have been paid, interest and attorney’s fees. The Court may award you an additional amount of “liquidated damages” equal to the amount of overtime that you should have received. For example, if the Court determines that you are owed $2,500.00 in unpaid overtime, then you may receive an additional $2,500.00 as liquidated damages, making a total award of $5,000.00.
How far can we go back? Five years ago I worked for this company that required me to work 60 hours per week without overtime pay, can I a file a claim for that?
No, generally speaking, you can go back two years from the date that you file suit and recover unpaid overtime for that two (2) year period. If it can be shown that the employer willfully violated the FLSA, then you can go back three (3) years.
Assuming that I have a valid claim, how long does it take to get my money?
If the employer desires to settle the case without going to court, it could take as little as a few weeks. Otherwise, if legal action is necessary it could take between a few months to several months.
What if I don’t know how much is owed to me, can I get some help calculating my damages?
Yes. We are very experienced at calculating damages and can do this very quickly for you if you provide us the information.
My boss told me that he doesn’t have to pay me overtime because I am an “independent contractor.” Is he correct?
Maybe. However, some independent contractors are considered employees for the purposes of overtime. It depends on other factors that we will need to review before a firm answer can be given.
What if I know my job was exempt from overtime, could I still have a claim?
Yes. You may still have a good overtime claim. For example, you may be performing “non exempt” job duties more than 50% of your work time, or your employer may have “docked” you for time off. The exempt status can be lost.
My boss tells me that since I work 30 hours one week and 50 hours the next week, that I average 40 hours per week and am not entitled to overtime. Is that correct?
No, a single workweek is the standard. The averaging of workweeks is expressly prohibited by law. You are entitled to overtime compensation for week two (the 50 hour work week), assuming that you are not otherwise exempt under the FLSA.
What types of positions are exempt from the overtime laws?
The following jobs are usually classified as “exempt.” However, exemptions are narrowly construed against the employer asserting them, and the ultimate burden of supporting the actual application of an exemption rests with the employer.
- Commissioned sales employees of retail or service establishments if more than half of the employee’s earnings come from commissions and the employee averages at least one and one-half times the minimum wage for each hour worked.
- Computer professionals who are paid at least $27.63 per hour.
- Employees of motor carriers if the employee’s duties affect the safety of operation of the vehicles in transportation of passengers or property in interstate or foreign commerce.
- Employees of certain seasonal and recreational establishments
- Farmworkers employed on small farms.
- Salesmen and mechanics employed by automobile dealerships
- Executive, administrative, professional or outside sales employees who are paid on a salary basis.
Other exemptions : airline employees, baby-sitters on a casual basis, boat salespeople, buyers of agricultural products, companions for the elderly, domestic live-in employees, farm tool salespeople, federal criminal investigators, firefighters working in small (less than 5 firefighters) public fire departments, fishermen, forestry employees of small (less than 9 employees) firms, fruit & vegetable transportation employees, livestock auction workers, local delivery drivers and driver’s helpers, lumber operations employees of small (less than 9 employees) firms, motion picture theater employees, newspaper delivery employees, newspaper employees of limited circulation newspapers, police officers working in small (less than 5 officers) public police departments, radio station employees in small markets, railroad employees, seamen, sugar processing employees, switchboard operators, taxicab drivers, television station employees in small markets, truck and trailer salespeople.
I’m not paid hourly, I’m paid a weekly salary. My boss tells me that I am not entitled to overtime. Is he correct?
The fact that you are paid a weekly salary does not, by itself, make you exempt under the FLSA. Your employer cannot pay you a weekly salary simply to avoid paying you overtime. Assuming that you are not otherwise exempt under the FLSA, your boss must convert your weekly pay to an hourly rate and pay you time and a half for all hours worked in excess of 40 hours. This applies to monthly and semi-monthly salaries as well.
I make $10.00 per hour and work 60 hours every week. My boss pays me $600.00. Am I entitled to overtime?
Assuming that you are not otherwise exempt under the FLSA, your boss has short changed you $100.00 for every week that you worked 60 hours. Here is the math:
- 40 hours @ $10/hr. equals $400.00
- 20 hours @ $15/hr. equals $300.00 (time and a half is 1.5 times the hourly rate ($10/hr) or $15.
- You should have been paid $700.00. Your boss owes you $100.00.
I work in a factory and build wood tables. I get paid by the table. I get $100.00 for each table that I build. I work 10 hours per day, five days per week. In my regular work week, I build 4 tables? Am I entitled to overtime?
Assuming that you are not otherwise exempt under the FLSA, yes, you should receive overtime pay. First, you must convert your “piece work” rate to an hourly rate. In your case, you earn $400.00 for 50 hours of work, or $8.00 per hour. You should be paid 1.5 times your regular hourly rate for the 10 hours that you worked in excess of 40. Under this analysis, since you were already “paid” the $8.00 per hour for the extra 10 hours, your boss now only owes you 0.5 times your regular rate ($4/hr). Your boss owes you an additional $40.00 in this case.
Am I exempt because my employer calls me exempt?
No, it makes no difference if your employer calls you exempt or non-exempt. It also makes no difference if your employer gives you a title such as “manager” or “department head,” making it appear as if you should not be paid overtime. For example, some employers will call workers “assistant managers” to avoid paying overtime when those employees are actually regular line workers who are not exempt and should be paid overtime. What matters is what you do , not what you are called.
Should I file a claim against my current employer, or wait until after I’ve left?
You should exercise your right to overtime and file as soon as possible. Although you can go back two years in most cases, it is best to file as soon as possible so that time records and witnesses are readily available.
If I file a claim against my current boss, can I be fired?
No, you cannot be fired for filing a claim for overtime against your employer. Retaliation is illegal and remedies exist if this happens to you. Robert S. Norell also handles retaliation claims under the FLSA.
What should I do if I suspect that I am entitled to unpaid overtime pay?
Call an attorney and seek legal advice. The law as it applies to your situation may be confusing to you. You should get an opinion from an attorney who is knowledgeable about the issues in your case. All of the facts surrounding your employment need to be examined. There is no charge for an initial consultation with our law firm in overtime and unpaid wage cases.
I can’t afford an attorney? Will you do my case pro bono?
Although I do my share of pro bono cases, overtime and unpaid wage cases are handled via contingency fee agreement. Basically, that means that my fee is contingent on a recovery from the employer.
How much money will I have to pay up front in order for you to take my case?
In most cases, all costs for overtime and unpaid wage cases are advanced by our firm. Because our fee is contingent on a recovery from the employer, the firm does not get paid or reimbursed for expenses until the recovery is made.
What happens if I lose my case, will I owe you attorney’s fees?
No, unless you resolve your case on your own while you are being represented.
Call Now for a Free Evaluation of Your Case
If you believe that you may have been misclassified as exempt from overtime, call Florida overtime attorney Robert S. Norell for a free case evaluation. We will evaluate your claim and let you know if we think you are entitled to compensation for any unpaid overtime. Call 954-617-6017.