The Erlich Law Office
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Please read this FAQ about the Fair Labor Standards Act and contact us if you think you are owed wages, including overtime.
What is Minimum Wage?
The Federal minimum wage is $7.25 per hour.
For tipped employees, the direct minimum wage is $2.13 per
hour, but tipped employees must make at least $7.25 per hour, including
tips. If the total is less than
$7.25 an hour, the tipped employee’s employer must make up the difference.
If you are making less than $7.25 per hour, you should
contact an attorney.
What is Overtime?
In general, most jurisdictions calculate overtime as one and
a half (1 ½) times your hourly rate for hours worked over 40 hours per
week. Some people are exempt from
this requirement for various reasons, but if you are not earning overtime, you
should contact an attorney.
What does ‘exempt’
Under the Fair Labor Standards Act (“FLSA”), certain
employees are exempt from the overtime provisions of the Act. There are all sorts of exemptions,
ranging from exemptions for management to exemptions for truck drivers, but
most people are non-exempt.
Am I exempt?
Questions about exemptions can be very difficult legal
questions and they are often at the heart of FLSA litigation. We will do our best to provide
you with some basic guidelines in the following answers.
Can I get overtime if
I make a salary?
YES. This is a
terrible misconception. A salary
is a set rate for 40 hours of work.
It is not a license for your employer to make you work as many hours as
your employer wants per week without paying you more.
If you are on salary and working more than 40 hours per
week, seek legal counsel to determine if you are exempt from overtime.
Can I get overtime as
You are not exempt from overtime just because your title is
manager. Let us explain.
Actual managers are exempt from overtime under a rule called
the Administrative or Executive Exemption. These are the sorts of managers who have the authority to
hire and fire, make the schedule, and have real discretion over the operation
of the location, branch, or company.
However, some businesses will call employees assistant
managers or managers when those employees do not have real managerial
responsibilities. These employees
are not exempt and have full
rights to overtime.
What if my employer
does not know about all the hours I work?
This problem comes up regularly at jobs where people do not
clock in and clock out. It is the
responsibility of the employer to keep records of how much and how often you
work. If your job responsibilities
require you to work 60 hours per week and your boss simply does not know about
it, that is your employer’s responsibility, not yours. You are still owed overtime for your
Is it ok for my
employer to give me comp time (or compensatory time) rather than overtime?
Only if you work in government, including state and local government. (See the DOL Fact Sheet on State and Local Government here.) The FLSA allows for government entities to use comp time, but it
does not allow private employers to replace overtime with comp time. If you work for a private employer who gives comp time
rather than overtime, you should contact an attorney.
Can I get overtime if
I drive a truck?
If the truck is less than 10,000 pounds: yes, you can get
overtime. And so can the other
people on the truck, the mechanic, and the loaders.
If the truck is over 10,000 pounds and you cross state
lines, you probably are exempt from the overtime requirements of the FLSA. If you do not cross state lines, you
have a better chance of getting overtime.
What if I already get
Sometimes, a company will pay some of the overtime it owes,
but not all of it. If your
employer has any overtime policy other than paying overtime for every hour over
40 in a workweek, you should consult an attorney.
How long do I have to
file a lawsuit?
FLSA has a two year statute of limitations. There is an extension available
to three years if you can prove that the employer’s failure to pay wages was
willful, but that is a difficult task.
If at all possible, try to bring your claim within two years.
Can I be fired for
filing an FLSA claim?
No. The FLSA
has an anti-retaliation provision that prevents this sort of conduct by