Common Violations

Common Wage & Overtime Violations

Although there are any number of ways that an employer can violate the FLSA or state wage laws, most violation fall into a number of predictable categories. The most common violations are as follows:

Paying overtime hours at regular time rates - Employers will often pay hourly employees for all of the hours they work, but will simply refuse to pay the overtime at the proper overtime rates. Occasionally, employers will do this openly due to a mistaken belief that they are not required to pay overtime rates. Other times, employer will attempt to hide the fact that they are paying the overtime hours at the wrong rate by paying the overtime hours in cash or paying the overtime hours from a second account. In all of these instances, the employer is in violation of the law and the employee has a legitimate claim for additional pay.

Withholding an employee’s last payroll check - This happens for a variety of reasons. The employer may claim that it doesn’t have the money at that time, that it takes additional time to process the final check and that the employee will get paid “eventually” or that it won’t pay because the employee did something wrong (e.g. – angered a customer, failed to give enough notice, didn’t do the job properly, etc.). Sometimes, it is because the relationship ended on bad terms and the employer is simply attempting to punish the former employee. In any event, this is not a legal action on the part of the employer and is covered under both state and federal law.

Paying the employee a “salary” - Employers often assume that if they pay an employee a salary, then they are not required to pay that employee for overtime. However, many “salaried” employees are not truly exempt from overtime requirements, even if the company assigns them a title such as “manager” or “supervisor”. The true test of whether such an employee is entitled to overtime pay depends on the actual duties that employee performs on a day to day basis. In cases such as this, the hourly rate can be determined by dividing the “salary” by the standard forty hour work week.

Requiring an employee to work off the clock - Sometimes an employee will be required to perform certain setup tasks before clocking in or will be required to be at work by a certain time and then have to wait to be assigned the first job before clocking in. Other times, employees are told that they are not allowed to have overtime on their time cards, but they are required to get the job done before leaving for the day, even if it means working after clocking out. In these types of cases, the employer is breaking the law and the employee is entitled to be paid at the appropriate rate for those additional hours.

Refusing to pay an employee for unapproved overtime - Many times, employers will reduce the amount of hours due to an employee because the overtime was not approved in advance. This is legally improper, as the employer is required to pay the overtime even if it has a policy that the overtime requires prior approval.

Asking an employee to work during lunch break - If an employee is not entirely free from regular job duties during lunch, the employer owes that employee additional wages for the lunch break. Employees often report being interrupted during lunch breaks to handle phone call or urgent issues on a regular basis, and are entitled to wages when that happens.

Assigning On-Call work to an employee – If an employee is “On-Call”, that individual is required to be paid for the actual work performed during that period at a minimum. Under certain circumstances, the employee may be entitled to wages for the entire time spent On-Call.

Paying the employee on a two week pay period - Employers often pay their employees every two weeks. When they do, sometimes the employer will only pay overtime rates if the employee works more than 80 hours over the two weeks, even if they work more than 40 hours during one of the weeks. This is improper, as the employer is required to pay overtime rates for the hours in excess of 40 for the one week, even though the two week total is not more than 80 hours.