FAQs

Frequently Asked Questions

How do I know if I’m entitled to overtime pay?
If the employer is a covered employer under the Fair Labor Standards Act (FLSA), you are entitled to one and a half times your regular hourly rate for each hour worked in excess of 40 hours per week unless you are exempt from the overtime law. To determine whether your employer is a covered employer and whether you are exempt from the overtime law, call Loren & Mercer, P.A. now at 1-800-WAGE HELP or click here to submit a simple online case form.

Is my employer required to pay overtime?

The following types of employers are covered by the FLSA, and potentially required to pay overtime:

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 types of positions are exempt from the overtime laws?
Employers often make mistakes and misclassify people as exempt when they are not, so call Loren & Mercer, P.A. now at 1-800-WAGE HELP to find out if you are truly exempt. As a general rule, the following jobs are usually exempt from overtime requirements:

Certain Truck Drivers
Employees of certain seasonal and recreational establishments.
Farmworkers employed on small farms.
Salesmen and mechanics employed by automobile dealerships.
Executives, professionals or outside sales employees who are paid on a salary basis.

How much will it cost to have you represent me?
Loren & Mercer, P.A. represents our client on a contingency fee basis, and charges no fees or costs unless a successful recovery is made. The Fair Labor Standards Act requires the employer to pay for the attorney's fees and costs if the claim is successful. Therefore, we don’t get paid unless you get paid.

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. In addition, unpaid wages can be commissions that you have earned but have been withheld by your employer.

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. You are not exempt just because you are paid a salary or just because your boss tells you that you are exempt.

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 $4,500.00 in unpaid overtime, then you may receive an additional $4,500.00 as liquidated damages, making a total award of $9,000.00.

What if I agreed to work overtime but not be paid for it?
Even if you signed a waiver or release in favor of your employer, you can still pursue your claim. Agreements to waive your right to overtime cannot be enforced unless the Department of Labor supervised the agreement process or a court approves the agreement. Agreements forced upon you by your employer typically are not supervised by the DOL or a court.

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. In fact, the FLSA requires employers to maintain time and pay records. If the employer fails to produce such records, than your reasonable recollection of the number of overtime hours worked will be good enough.

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 after we get some basic information from you.

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.

If 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.

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. Many employers improperly classify its employees as independent contractors to save money. An employer does not have to match Social Security and Medicare withholdings on independent contractors, which is 7.65% of your pay. This is one reason that employers misclassify its employees as independent contractors. The other reason, obviously, is to keep from paying overtime.

If my employer did not issue me a W-2 for taxes, but rather issued me a 1099, may I still pursue my unpaid overtime?
Yes. Again, employers sometimes misclassify their employees as independent contractors, leading them to issue a 1099 instead of a W-2. Whether an individual is an employee, or an independent contractor, is determined by the facts of the relationship between the parties, rather than by the designation that the employer unilaterally assigns to it. Thus, many individuals are found to legally be employees deserving of overtime wages, despite the employer having mis-classified them as independent contractors.

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.

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, semi-monthly and annual salaries as well.

I make $10.00 per hour and work 70 hours every week. My boss pays me $700.00. Am I entitled to overtime?
Assuming that you are not otherwise exempt under the FLSA, your boss has short changed you $150.00 for every week that you worked 70 hours. Here is the math:
40 hours @ $10/hr. equals $400.00
30 hours @ $15/hr. equals $450.00 (time and a half is 1.5 times the hourly rate ($10/hr) or $15. You should have been paid $850.00. Your boss owes you $150.00.

I work in a factory and build wood chairs. I get paid by the chair. I get $75.00 for each chair that I build. I work 10 hours per day, five days per week. In my regular work week, I build 10 chairs? 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 $750.00 for 50 hours of work, or $15.00 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 $15.00 per hour for the extra 10 hours, your boss now only owes you 0.5 times your regular rate ($7.50/hr). Your boss owes you an additional $75.00 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?
It would be illegal if your employer fired you because you filed a claim for unpaid overtime. 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. However, there is no fee if there is no recovery.

How much money will I have to pay up front in order for you to take my case?
Nothing. If we take your case, we will advance all costs. 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.

Can I bring claims for unpaid compensation against past employers?
You are permitted to bring a claim against any employer that you worked for within the statute of limitations. Thus, a claim for proper compensation can be brought against current and former employers.

What if I am not a U.S. citizen?
That does not affect your ability to bring a claim. You are entitled to proper payment regardless of your citizenship status.

Will I be able to recover overtime wages if I accepted cash wages at my straight time rate for overtime hours worked?
Yes, even if the employer pays cash, they must still compensate you at a time-and-one-half overtime rates for all overtime hours.

If I file a lawsuit to recover unpaid wages or overtime, can my employer fire me?
No. The Fair Labor Standards Act provides that an employer may not retaliate against any employee who seeks to protect their statutory rights to legal compensation, and any such proven retaliation may result in additional monetary penalties being awarded to the employee.

Do I have the right to be paid overtime rates if I am on salary?
Yes. Many employers and employees believe that salaried employees are not entitled to overtime wages. However, salaried employees are entitled to overtime unless they are executives, administrators or professionals, as those terms are legally defined. Making this determination can be complicated so we suggest that you call for a free consultation.

I get tips as part of my job, so am I allowed to make a claim for overtime wages if I work more than 40 hours per week?
Yes, even employees that receives tips are entitled to be paid a higher amount for hours worked in excess of 40 per week.