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FAQs – Resources

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Frequently Asked Wage & Hour Questions

Check out our Practice Area pages for your more specific questions answered about late payment, determining one’s overtime eligibility, calculating regular rate of pay and overtime pay, equal pay and sexual assault.

If you have any additional questions about your wage and hour rights, please don’t hesitate to ask us via the Contact Us form, emailing us at info@mselaborlaw.com or by calling at 202-833-8855.

There are three sources by which the payment of wages is governed:

  1. the Fair Labor Standards Act (FLSA)
  2. State and local government wage and hour laws
  3. collective bargaining agreements (for Federal employees various federal employee pay statutes)

Fortunately, employees are entitled to be paid wages that are in compliance with the most beneficial of these three pay systems. For example, if a union contract calculates overtime pay at a rate that is less than the FLSA requires, the employee is entitled to receive the FLSA pay rate. Similarly, if a state law requires employees to be paid double time for Sunday work, the officers must receive this pay even if it is not in their union contract.

The FLSA is the Fair Labor Standards Act which provides the nation’s workers with the right to be paid the minimum wage and the right to receive overtime pay when they work more than 40 hours a week. For law enforcement and fire protection employees, if an employer adopts it, there is a partial overtime exemption under section 7(k) in which employers do not have to pay overtime until 43 hours a week for law enforcement, 53 hours for fire fighters, or some other work period that the employer has established and adopted between 7 and 28 days.  However, to use this partial overtime exemption for public safety employees, an employer must adopt section 7(k) and establish a work period for purposes of calculating employees’ overtime pay.

Some state laws provide greater overtime rights to employees. Employees are entitled to receive whichever law – the FLSA or state law – provides greater benefits for employees.

There is no such thing as “volunteers” who work for for-profit enterprises. For example, persons who “volunteer” to work for computer or internet companies in exchange for free internet service would be covered by the FLSA. They would be entitled to the minimum wage and overtime pay. Volunteering as part of an apprenticeship or a school internship is permitted provided certain criteria are met.

Overtime pay cases

Under the FLSA, backpay damages equal the difference between what an employee would have been paid for overtime hours had the employer complied with the FLSA and the amount that the employee actually received as payment, if anything, for working overtime. In addition, liquidated damages equal to the amount of backpay are owed unless the employer is able to prove that it acted in good faith. In cases in which liquidated damages are not awarded, prejudgment interest is recovered in most cases. The recovery of attorneys’ fees and costs from the employer is mandatory under the FLSA.

Most state overtime laws prescribe similar or better remedies such as triple liquidated damages.

How far back can damages be obtained?

There is a two-year statute of limitations that applies to FLSA overtime claims which is extended to three years if it is proven that the employer “willfully” violated the law. This means that if you filed a case today, you would be able to recover back overtime pay going back two years and possibly three years from today.

Most state overtime laws follow the FLSA recovery period, though many have longer statutes of limitations.  For example, in New York the statute of limitations is six years for private sector employees.

WARNING! Filing a wage and hour complaint with the U.S. Department of Labor (DOL) does not toll the statute of limitations! For example, if you file a complaint with DOL today and DOL takes a year to investigate your claim without taking any action, you have lost a year of backpay. If you then decide to pursue a case on your own or DOL takes your case to court, the statute of limitations will be determined by going back two years from the date your complaint is filed in court (three years for a willful violation).

How do employees prove damages? Do they keep their payroll records?

The FLSA requires employers to keep accurate payroll records of employees’ work hours and the amounts paid to them. This is true even for employees who the employer thinks are excluded from the overtime laws. If an employer fails to maintain records, the courts rely on employees’ reasonable estimates of their work time that is provided through employee testimony or written documentation.  Obviously, if an employee has maintained his or her payroll records that is very helpful. However, if an employee does not have pay records, and the employer does not either, the courts will usually credit the employee’s recollection of work time.

The application of the overtime laws to federal, state, and local government employees is, for the most part, the same as the application in the private sector. There are a few noteworthy differences, however.

Police and fire fighters are subject to a partial overtime exemption so that they are not entitled to FLSA overtime until after they have worked more hours than other employees provided that their employer adopts the partial overtime under section 7(k) of the FLSA and the employer adopts a recurring work period of between 7 and 28 days.. For information regarding the unique overtime laws applicable to fire fighters and police, click on the one that applies to you.

The rules applicable to state and local government employees differ from those applicable to federal employees.

The main differences between the application of the FLSA overtime laws in the private sector and in the government are as follows:

  1. The payment of compensatory time is permitted to local government employees as long as there is an agreement before overtime work commences that compensatory time will be paid. The maximum amount of compensatory time that can be accrued is 240 hours for most government employees (480 hours for public safety workers). Employers can not compel employees to accept compensatory time as payment for overtime work;
  2. Employees can volunteer to work for their governmental employer provided that the work they volunteer to perform is not of the same type that the employee normally performs. For example, a fire fighter can volunteer to be a counselor at a youth facility. Moreover, an employee cannot act as a volunteer fire fighter for an employer if one is employed by that employer as a fire fighter. Private citizens can volunteer for public employers.
  3. Governmental employees who are employed by the same public agency may, with their employer’s approval, trade work shifts without affecting their overtime compensation.
  4. Training time that is required by a higher governmental authority — such as a state requiring a city to train its employees — does not have to count as work time.

The FLSA and many state laws contain provisions that protect workers who file cases to recover overtime from retaliation by their employers. In addition to the remedies that are available in an overtime case, in a retaliation case, injunctive relief and front pay are available. The FLSA provides for backpay, front pay, injunctive relief, double damages, interest, attorneys’ fees, and costs.

Injunctive relief is the court order requiring an employer to refrain from certain conduct or ordering it to engage in certain conduct. Front pay is pay which is an estimate of how much in benefits and money an employee would have received in the future had he not been retaliated against.

Yes. Although anyone who is paid on an hourly basis is entitled to receive overtime pay regardless of their job duties, there are many salaried employees who are entitled to overtime pay.  Employees who are salaried are presumed to be entitled to overtime pay and it is up to the employer to prove that they meet one of the exemptions to the overtime laws such as those for professionals and executives.

There are millions of employees who work at desks in white collar, office settings who are entitled to Fair Labor Standards Act overtime compensation when they work over 40 hours a week. Courts and arbitrators have awarded overtime pay to escrow closers, insurance adjusters, project managers, management analysts, mortgage lenders, wholesale salespeople, probation officers, assistant restaurant managers, police detectives, electronics, architect, accounting and mechanical technicians, budget analysts, paralegals, and a variety of other office jobs.

Under the overtime laws, employees are presumptively entitled to premium overtime pay and the types of workers who are exempt from the overtime laws are limited to certain specified exemptions.  Most employees, including most employees who work in offices, do not fall within these exemptions and are therefore entitled to overtime pay.

An employer must pay for all work time that it “suffers or permits” an employee to work, including time the employee spends engaged in activities to get ready to start his or her shift. For example, in Alvarez v. IBP, the Supreme Court ruled that employees were entitled to pay for work from the time the employees first picked up equipment at their plant until the time they returned the equipment at the end of the day.  The Court held that this included time spent waiting in line to pick up more equipment, time putting on equipment and time spent walking to their workstation. Simply put, employers can not avoid payment for work time by simply labeling it “pre-shift” or “preparatory time.”

No.  Rounding of time is permitted only if an employer rounds up and rounds down, and only then for small increments.  For example, an employer can provide that an employee must work at least 7.5 minutes to be paid, but then if the employee works over 7.5 minutes, the employer must round up and the employee must be paid for 15 minutes of work time.  An employer cannot simply deprive an employee of 15 minutes a day of work time.

Legal Representation for All Workers

When McGillivary Steele Elkin LLP decides to take your case, it is because we believe there is an unacceptable workplace violation that has negatively impacted you or resulted in your employer paying less than what the law requires and which we have a reasonable chance of remedying. We recognize that meritorious claims should not go unremedied because of the level of a person’s resources.

To ensure accessible and available legal representation for all our clients, MSE handles cases through different forms of fee arrangements, including contingency fees, hourly fees and fixed fees.

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