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Workers Compensation Lawyers
in Houston, Texas
Overtime & Workers Wage Claim
In recent years, employees have lost many rights in the wake of corporations trying to increase their profits.
However, one value that is still alive and well in the U.S. is receiving
"an honest day's pay for an honest day's work."
Yet, few workers are aware that the Fair Labor Standards Act (FLSA)
protects them from unscrupulous employers. An employer who requires
or permits an employee to work overtime is generally required to pay
the employee for hours worked in excess of 40 in a work week at a rate
not less than time and one-half their regular rates of pay.
The law allows you to sue for back overtime pay up to three years
from the date a lawsuit is filed. Moreover, in some cases, employees
are entitled to double the amount of their back pay plus lawyer's
fees. The amount of your claim can add up quickly depending on how long
and how many hours you worked.
The following are some
common scenarios in which employees are denied their pay:
- You are paid a
"flat salary" no matter how many hours you work, but you are
not really involved in management, supervision or decision making for
the business. (See the tests for determining if you are "exempt")
- You get to work
before your scheduled time and begin working (setting up, roll call,
etc.), but don't clock in until your scheduled start time.
- You are required
to clock out at your exact scheduled finish time, but continue working
"off the clock" to finish your work, clean equipment or do
a few extra work-related tasks.
- You take work
home with you, but do not include the time spent working at home
on your time record and your employer permits this.
- You work through
your lunch break or eat lunch at your desk, but the time allowed
for lunch is deducted on your time record.
- You are paid "straight
time" for all hours you work, even if you work over 40 hours in
a single workweek.
- Your hours are
averaged over 2 or more workweeks to determine overtime. If you
work 50 hours one week and 30 hours the next (for an average of 40 hours
per week), you are paid for 80 regular hours and no overtime.
- You are not paid
for overtime hours because you didn't
"put in" or get permission to work, although your employer knows
(or has reason to believe) you are doing the work.
- You are treated
as an "independent contractor", but your work is largely
controlled by the company. (See factors to consider in determining if
you are an independent contractor).
- Your employer doesn't
keep track of your hours or does so in a sloppy manner that results
in you getting shorted on your time.
- You are periodically
paid a "bonus" or something "extra" for working overtime,
instead of being paid time and a half for each hour worked over 40 in
a single workweek.
- Your bonuses, shift
differential, commissions and/or other incentive pay are not included
when calculating your overtime pay rate.
- You don't get
overtime because you are paid a "salary" and/or given the title
of manager, assistant manager or supervisor, but do not have
any real authority to "manage" or direct other employees or the
business. You don't have the authority to hire or fire others and
your suggestions on such are not given any real weight.
- You work for
tips, but your tips combined with the wages paid by your employer
do not equal the minimum hourly wage ($5.15 per hour) and your employer
does not make up the difference.
- You work for tips,
but are required to share your tips with managers, dishwashers,
cooks, chefs or others who are not entitled to share in tips.
- You don't work
for the government, but get "comp time" instead of overtime
pay.
- You are required
to do a lot of traveling on behalf of your employer, either from
job site to job site or overnight, but are not paid for some or all
of the time spent traveling.
- You are required
to attend work-related meetings and/or training sessions, but these
hours are not included on your weekly time record.
Common Overtime Issues
New Law-Do you earn less than $455 per week?: If you earn less than $23,660/year, you are entitled to overtime even if you are on salary. Under the new Fair Pay rules that took effect on August 23, 2004, workers earning less than $23,660 per year ($455 per week) are guaranteed overtime protection. This will strengthen overtime rights for 6.7 million American workers, including 1.3 million low-wage workers who were denied overtime under the old rules. What this means is that any person paid a salary of less than $455 per week who worked more than 40 hours per week is now entitled to overtime. Occupations that are likely to be affected by this new law include: Assistant managers at fast food or retail stores.
Misclassifying Employees as Exempt:
One of the most common schemes used by employers to avoid paying overtime due to their employees is to illegally classify them as "exempt" from overtime pay. Clever employers will sometimes refer to employees as "managers" or "assistant managers," but still require them to perform tasks that are not considered "managerial."
Waiting Time:
Whether waiting time is time worked under the Act depends upon the particular circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time). For example, a secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been "engaged to wait" and are due overtime.
Working off the Clock:
If an employee spends time doing work not requested by the employer, but still allowed, such time is still considered hours worked under the FLSA because the employer knows or has reason to believe that the employees are continuing to work and the employer is benefiting from the work being done. This time is commonly referred to as "working off the clock." For example, a fast food worker may voluntarily continue to work at the end of the shift to finish cleaning a restaurant or other task. The hours are work time and are compensable.
Failure to Pay for Breaks: Rest periods of short duration, usually 20 minutes or less, are common in industry (and promote the efficiency of the employee) and are customarily paid for as working time. These short periods must be counted as hours worked.
Failure to Pay for Meal Periods: Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer's rules, and any extension of the break will be punished. Bona fide meal periods (typically 30 minutes or more) generally need not be compensated as work time. The employee must be completely relieved from duty for the purpose of eating regular meals. The employee is not relieved if he/she is required to perform any duties, whether active or inactive, while eating. For example, a delivery driver who eats lunch while making delivers is still working.
The method of calculating overtime can
be complex and there are exceptions to the general rules.
When the new law was passed, the legislature predicted that a large
pool of workers would be entitled to overtime who previously had not
been due overtime. Many employers do not want their employees to be
aware of the new law. To find out if you have a valid wage claim or
overtime, contact Kennedy Hodges. We handle all plaintiffs' wage and
overtime cases on a contingency fee basis.
If you have any further questions regarding workers wage and overtime claims,
or would like a free office consultation in Houston, Texas, please
call our workers compensation lawyers at (713) 523-0001, or e-mail us by clicking on our email link.
If there is no recovery, there is no fee from our lawyers. Fill out the form below for a risk free consultation.
Kennedy Hodges, L.L.P.
3701 Kirby Drive, Suite 400
Houston, TX 77098
713-523-0001 (phone)
713-523-1116 (fax)
877-342-2020 (toll free)
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