When Does an Employer Have to Pay Overtime? was last modified: March 3rd, 2016 by Howard Iken

howard-headMany employers in Florida violate the law when it comes to paying their employees overtime wages for the work that was performed. Many times, they do this out of ignorance of what the law requires.  Some employers refuse to properly compensate their employees when it is brought to their attention. Our attorney Sara Evans discusses common situations and how to address them.

When Must Employers Pay Overtime ?

When Does an Employer Have to Pay Overtime?

Our specialized content, video, and other informative media are based on input from Ayo and Iken team members,  outside guests, former team members of Ayo and Iken, independent journalists, and subject-matter authorities. The opinions expressed do not necessarily reflect the official position of Ayo and Iken. Attorneys that are not current team members at Ayo and Iken may be reached through their member listing on the Florida Bar website: www.flabar.org


Howard Iken:            This is Attorney Howard Iken, and today we’re going to our legal information studio, where we’ll have Sara Evans discuss overtime. When employers have to pay you overtime, and what you can do if you don’t receive the proper amount of overtime. We’re here to talk with Sara Evans, and Ms Evans is an attorney in the firm of Ayo and Iken, and Ms Evans concentrates on wage and hour law, and also family law. Good morning.


Sara Evans:                Good morning.


Howard Iken:            Today we’re going to talk about overtime issues. In particular, when exactly should someone be paid overtime, because I understand there are some issues or problems with that in general. Are there actual problems?


Sara Evans:                Yes there are.


Howard Iken:            What kind of problems do you see?


Sara Evans:                In a lot of cases people are not compensated for their overtime. You’re supposed to get paid 1.5 hours additional for every standard over the 40 hour workweek you work.


Howard Iken:            Everyone knows that, overtime, you should get OT, when you work over 40 hours, right?


Sara Evans:                Correct.


Howard Iken:            Why is that such a problem if that’s such a simple concept.


Sara Evans:                Some people have been misclassified. If you’re classified as a salary employee you don’t get compensated for overtime, but a lot of those employees are really not salary-based. They really should be hourly-based, and that’s where the whole overtime issue comes up a lot in legal practice.


Howard Iken:            Why would that be a problem. If an employer says you’re on salary, aren’t you on salary?


Sara Evans:                No. There’s a whole test which you would probably need to consult an attorney to go over, but there…


Howard Iken:            That would be you, right?


Sara Evans:                That would be me. There’s a whole test you can do to see if you really are a salary-based employees. Most of these, especially independent contractors, that issue comes up a lot too. That they’re saying that they really are either salary-based or independently paid, but they really are an employee of that company.


Howard Iken:            What you’re saying is if your employer says you’re on salary, you’re saying you’re not necessarily on salary?


Sara Evans:                Correct.


Howard Iken:            Does that happen a lot?


Sara Evans:                Yes. Actually the Department of Labor has even come up with app those people can use for free to calculate their time, just to make sure they’re getting paid for every hour. People also don’t get compensated when they work from home. Sometimes your boss will send you an e-mail, that’s considered time. You should be calculating that and trying to get paid for it.


Howard Iken:            Now wait a minute, I looked at a e-mail every now and then, and I’ve been in all kinds of different positions in my lifetime. I don’t think I’ve ever been paid on the weekend, or evenings, for just looking at an e-mail, but realistically it only takes me ten seconds to look at an e-mail. Are you saying there’s rules governing that?


Sara Evans:                Yes. There are rules specifically governing that.


Howard Iken:            What kind of rules?


Sara Evans:                Federal Labor Standard Act goes over all of that.


Howard Iken:            What is that again?


Sara Evans:                The Federal Labor Standard Act. It covers everything regarding these type of disputes. If you’re not being compensated correctly, it might only be ten minutes on the weekend, but if you add that up every weekend that’s a substantial amount of time.


Howard Iken:            Let me take this to the furthest extreme. Let’s say it applies to me, and I’ve worked in positions before, like I said, where I’ve checked an e-mail. Let’s say Tuesday night rolls around, and I’m supposed to check if I have an e-mail, and I look and I have one e-mail from work, and it’s something I take ten seconds to read. Then I read it, I close my computer, and I’m done for the night. How is that handled?


Sara Evans:                You would want to first probably talk to an attorney, because a lot of times what we’ll do is write a letter for you, and demand money from your employer, ’cause…


Howard Iken:            Wait a minute. Ten seconds of money, that hardly seems worth it.


Sara Evans:                There are also for every violation a certain amount of money that you’d also put on top of that. You may, the first easier route would be talking to your boss. Saying when you’re having me work on the weekend I’m actually supposed to be compensated for this time. If that doesn’t work, maybe tell them I’m tracking it now. I would suggest using something like the app I mentioned earlier, and track all the extra time that they’re asking you to put in. If you see a certain amount build up, then it’s probably worth it for you to look into trying to get some of that money back from your employer.


Howard Iken:            All right. I’m sorry, I’m a bit of a trouble maker. Let me take this to the extreme. I check for two e-mails every single night. It takes me ten seconds per e-mail, but I have to do that every single night during the work week. What should my employer be paying me for that?


Sara Evans:                How much time does it take you, two seconds you’re saying, or ten seconds?


Howard Iken:            Let’s say ten seconds, sure. Ten seconds max, I look at it, it registers in my mind. I make a little mental note to do something the next day at work, and I close my computer. Do they have to pay me for that?


Sara Evans:                They do have to pay you, but the amount of time that you’re putting in there, if it’s not even up to a minute it’s hard to even track. That’s why if it’s ten seconds, that’s almost debatable. Are they requiring you to do this when you get home?


Howard Iken:            Absolutely.


Sara Evans:                It’s a requirement?


Howard Iken:            I have to do it as part of my job. Let’s just say that is a hypothetical.


Sara Evans:                I would say more of times where you have to actually respond to these e-mails, where the time would really build up. Do you ever have to respond to any of these?


Howard Iken:            Sure. Every now and then I’d spend five or ten minutes on it. Does that mean I only get paid five or ten minutes?


Sara Evans:                Yes. You only get paid for the time you actually work.


Howard Iken:            Why would that be worth it for me to do?


Sara Evans:                It would be worth it for you overall for the additional compensation you get, because if they are willfully, after you telling them that you do have problem, there’s an additional thousand dollar penalty for any willful violation, on top of the actual time.


Howard Iken:            Does that penalty come to me?


Sara Evans:                Yes the penalty part does come to you.


Howard Iken:            Let’s just say I get the thousand dollars, and I get paid for a minute here, and five minutes there, and ten minutes there. How do I pay for my attorney?


Sara Evans:                Firms like one I work out will take that on a contingency basis, which means we will take care of that part, because the attorney fees will get paid by your employer.


Howard Iken:            Are a lot of people not paid for their overtime do you think?


Sara Evans:                I’ve heard, well actually I’ve seen statistics wise, there’s a 77% increase in these wage and hour disputes since 2004.


Howard Iken:            Why do some of these work places do this if they know it’s illegal, and they really should be paying people, why do it at all?


Sara Evans:                Sometime they don’t think anyone’s going to do anything about it. It just depends on the employer.


Howard Iken:            I have to say, if I were working somewhere I’d be afraid to make some trouble, and ask them to pay me overtime for some time I’m spending. Are there any protections, or can they just retaliate against me.


Sara Evans:                No, there are definitely different productions against you too. There’s wrongful termination suits you can file against them for that type of action, if they did let go right after you did bring up a lawsuit.


Howard Iken:            The fact that I do that, if I were to do it, does that make me unemployable?


Sara Evans:                No.


Howard Iken:            Is that spread around, different employers, or is it in the newspaper, or anything like that?


Sara Evans:                If you put it in the newspaper, if you go out and reach out to media, then yes, but on it’s own, most of these lawsuits don’t hit the front page, unless they’re Class Action lawsuits.


Howard Iken:            I’m not that crazy about going to court for really minor things. Do people always need to go to court on something like that.


Sara Evans:                No, the majority of these lawsuits are settled outside of court, so you would never see a courtroom.


Howard Iken:            What do you mean settled? What’s the process on that?


Sara Evans:                The employers know they’ve done something wrong, or they don’t want to spend the expenses for an attorney, so they will make a settlement offer to you, generally in these cases. That’s how most are resolved.


Howard Iken:            Let’s say I’m a ten dollar an hour employee, and my employer didn’t pay me a 100 hours over the last year. How much do I get?


Sara Evans:                You would have to look the different; if it was willful, and see if there is any additional penalties. You’ll get the total amount that you were seeking, plus additional penalties if it is willful. On top of that the salary part, I mean the hourly part will be calculated to actual time that you’ve missed out on. We would first make an offer over to the other side, and sometimes there’s negotiations that go on. It would depend on the whole circumstances of your case.


Howard Iken:            Now I remember in my past that sort of thing happened, and I’m sure that pretty much includes everyone else, all over the world. They have past employers where that has happened. Are they out of luck if they’re not working somewhere anymore?


Sara Evans:                You mean the statute of limitation issue, or…


Howard Iken:            Yeah, let’s say I quit a place and it was six months ago. Am I out of luck getting what they owe me?


Sara Evans:                No. There’s a two years statute of limitation, and then three year if it was willful.


Howard Iken:            What does that mean? Can I go back a certain ways?


Sara Evans:                Yes, you can go back two years.


Howard Iken:            Where do you do your wage and hour work out of right now?


Sara Evans:                All of Florida. It’s a federal, you’d be filing Federal Court, so the Middle District Court is where I file most of the suits, but anywhere in Florida.


Howard Iken:            If someone contacts you do they have to write a check to you, because let’s face it, people who are underpaid don’t have a lot of money to hire an attorney.


Sara Evans:                No, I would represent them for free. I get all my fees from their employer.


Howard Iken:            Is this something that’s fairly successful a lot of times?


Sara Evans:                Yes, very high success rate in these cases. You will not have to pay anything, they’ve never done attorney’s fees, because some cases you’re required to pay attorney’s fees if you don’t win. As long as you have a legitimate claim, you never have to pay the attorneys fees.


Howard Iken:            I’m not in danger at all to attorney fees if I file a lawsuit.


Sara Evans:                Correct.


Howard Iken:            Let me just clarify this, and this is on behalf of all the people who might see you, they don’t have to pay anything when they hire you?


Sara Evans:                No. All of my fees would come from their former employer.


Howard Iken:            Is this something that people should do when they haven’t been paid overtime?


Sara Evans:                Absolutely, you deserve to get every dollar you’ve worked for.


Howard Iken:            All right. Thank you very much Sara, and we hope to see you in a later video about wage and hour law.


Sara Evans:                Thank you.


Howard Iken:            Thank you.

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