McGillivary Steele Elkin LLP has successfully recovered wages on behalf of thousands of workers who faced late payments of overtime because their employers action resulted in them being paid overtime three or more weeks after the week in which the overtime was worked. This is considered a late payment under federal law, and the offending employer is liable for damages equal to the amount of late-paid overtime. This not only violates the federal Fair Labor Standards Act (FLSA), but it also violates many state laws that require employers to make timely payments to their workforce.
Paying Overtime Three or More Weeks Beyond the Week In Which It Is Worked
Typical late payment violations occur when: a timekeeper and/or supervisor neglects to timely submit the proper paperwork to process the overtime payment; a manager withholds payment to meet budget limitations for his or her department; or the employer just routinely delays payment of overtime for several weeks.
Both federal and state law protects workers from these violations because when an employer fails to pay promptly or consistently, the employee may not remember how much overtime he or she is owed. Additionally, the law imposes strict recordkeeping obligations on employers, and the employers cannot transfer those obligations to employees by forcing employees to keep track of the overtime that they worked.
If you think your employer violated the law by paying your overtime three weeks or more after the week in which it was worked, contact us as soon as possible.
We have provided further resources below on overtime pay issues under state and federal law. This information is intended as an introduction and overview of some of the rights related to workers and their ability to receive overtime pay. It is not intended to replace the detailed, case-specific analysis of a lawyer nor does it constitute legal advice.
If you have a question that is not answered in the resources below, or if you think you have been wrongly paid overtime late, contact us now by email at info@mselaborlaw.com, by phone at 202-833-8855, or click the link to access the Contact Us form in the menu header above.
Timely Payment
The FLSA requires that overtime be paid in the next pay period after it is worked for which the employee receives a paycheck. The damages for the failure to pay timely are either liquidated damages equal to the amount of the late payment or interest. In Biggs v. Wilson, 1 F.3d 151537 (9thCir. 1993), the court ruled that California state employees were entitled to liquidated damages for late paychecks. State laws often require timely payment of wages, as well.
The theory behind getting liquidated damages is that the employer is improperly receiving not only the fruits of the employee’s labor, but also the benefits of the employee’s money. Moreover, unless the employee receives his or her paycheck right away, the employee cannot remember how much overtime that he or she has worked and check whether the employer has paid for all of the overtime worked.
Section 211 (c) of the FLSA requires employers to maintain accurate records. If it can be shown that the employer has failed to meet this burden, the employees’ estimates as to hours worked are presumptively valid.
When Must Overtime Be Paid?
Overtime compensation must be paid on the regular payday for the pay period covered and, with one exception, overtime compensation must be paid in cash. Compensatory time or payment of overtime with “chits” or “IOUs” is prohibited. The only exception to this rule is that employers may deduct the reasonable value of lodging or meals in certain circumstances.
Overtime Must Be Paid In Cash
With the exception of local and federal government employees, overtime compensation must be paid in cash. Compensatory time off is not permitted as payment for hours worked in excess of forty hours a week for private sector employees. Government workers may be paid in compensatory time under certain circumstances that are described below.
Under certain limited circumstances, employers are permitted to meet their minimum wage obligations by including the reasonable value of meals and housing. If this is done, the value of meals and housing should increase the overtime rate.
Can an Employer and Employee Agree to Waive Overtime Pay?
No! Overtime pay may not be waived by agreement between the employer and employee. If the employer does not want employees to work overtime, it must establish and enforce workplace rules prohibiting overtime. In addition, an employer who is caught violating the overtime laws will not avoid back payments by cutting a deal directly with employees. Courts have found that agreements that purport to waive back overtime pay claims are unenforceable unless the Department of Labor supervises them, or the employee is represented by an attorney.
