If you've been putting in extra hours, you might be entitledto extra pay.
Whether you're hourly or salaried, blue-collar or white-collar, ifyou've been giving your boss more than 40 hours per week, you're duetime-and-a-half for each hour of overtime, unless you fit into one ofthe exceptions.
"The basic rule is that employees are entitled to overtime," unless theemployer can show that they fall into one of the exceptions, says DavidBorgen, co-chair of the wage and hour committee for the NationalEmployment Lawyers Association and partner with the California-basedfirm of Goldstein, Demchak, Baller, Borgen & Dardarian.
The employer has the burden of proving the employee fits the category,he says.
If employees "think they are being cheated on their pay, they probablyare -- and they should investigate," says Borgen. "Employees arewoefully underinformed and employers aren't much better."
"The issue is not if you go over 40 hours," says Rachel Geman, partnerwith the firm of Lieff Cabraser Heimann & Bernstein LLP. "Theissue is when you go over 40 hours."
Do you qualify for overtime? Here's the basic test under the federalrules. If you can answer "yes" to any of these questions, you'reprobably entitled to overtime.
Do you get paid by the hour? Do you make a salary that goes down if you miss work? Is your weekly salary consistent, but less than $455 aweek?If you meet any of these criteria, and aren't getting overtime forextra hours, "don't panic, but it's a real wake-up call to educateyourself," Geman says.Get paid by the piece or by the trip instead ofby the hour? That alone doesn't exempt you from overtime pay, says ToddNierman, shareholder in the Indianapolis office of Littler MendelsonPC. The fact that you are "not being paid hourly is not going to changethat," he says.The exemptionsSome groups of salaried people are exempt from overtime pay.To be included in one of them, you must first meet three criteria. Receive flat salary, rather than hourly wage. Earn the same amount each pay period (regardless of howmany days or hours you've worked). Weekly salary is equal to or greater than $455. (Theminimum may be higher in some states.)In addition to the three tests, there are also a series ofjob-duties tests. If you perform one of the following duties, you maybe exempt from overtime.Duty testsSix most common exemptions: The executive exemption The administrative exemption The professional exemption The outside sales exemption The inside (retail) sales exemption The computer exemption1. The executiveexemption: Is your primary duty supervising two or morefull-time people? If so, the law says that you don't get overtime."Supervising," has to mean that you've got some clout -- the ability tohire, fire, discipline, etc. If you're just the head assistant to theassistant manager and "supervising" consists of reminding the nightstaff to leave their Nintendos at home, that doesn't count.Be sure to examine your actual duties, not your title. "Justbecause someone's called a manager doesn't mean they're exempt fromovertime," says Geman.
2. The administrative exemption: This is one of the mostmisinterpreted exceptions. It covers people who impact the managementor business of their employer or the employer's customers. Often, it'smisconstrued to include secretarial staff, but it really covers peoplesuch as human resource heads and chief accountants, who may notdirectly supervise anyone, but who make decisions on behalf of thefirm. The test: You have to exercise independent judgment anddiscretion. Do you have the power to make decisions unsupervised? Doyou formulate or affect management policies? Can you speak for theemployer or enter into contracts on matters of financial importancewithout supervision? Can you waive established policies? Do you offerexpert advice? If so, you might qualify in this category.3.The professional exemption: This is "a prettynarrow exception to cover people who have advanced degrees and somelevel of education," says Nierman. Usually, the educationgoes beyond a bachelor's degree and includes other specialized study.Some of the jobs covered include doctors, lawyers, engineers andprofessors.4.The outside sales exemption: If you are a sales personwho is "customarily and regularly" making sales away from youremployer's office, you could be exempt from overtime pay.
5. The inside (retail) salesexemption: If you're in a retail or servicebusiness and make more than half of your salary from commissions, youcould be exempt from overtime. But this is "not applicable for people inthe financial service industry, like brokers or loan officers," saysBorgen.6. The computer exemption: If your primaryduty is the creation or architecture of software, you could also beexempt. But if you spend time on the computer testing ortroubleshooting, rather than designing programs, then the computerexemption probably wouldn't apply. This is also one of the rare instanceswhere you can be paid hourly and still be exempt from overtime. Butyour hourly rate must be at least $27.63, says Nierman. The biggest problem when it comes toovertime? Misclassification. Employees and employers believe the workerfalls into one of the exception categories when they don't.State lawsBrushup on state laws governing overtime pay. Laws can vary from state tostate. While states may strengthen the federal standards that protectemployees, they can't weaken them. One example: Federal law says that toqualify for one of the exemption groups, your weekly salary has to beat least $455. But some states may require a higher pay rate in orderto be exempt.
Congratulations! Now what?OK,you suspect that you should be receiving overtime. Now how do you getit?In a perfect world, you would go to yourboss, remind him or her that you had been overlooked and soon bepresented with a check for all the uncompensated overtime you'velogged. The law says you're entitled to all the back pay you shouldhave received from the moment you were misclassified. And employers arenot allowed to punish, reprimand or fire you for requesting it.But in the real world, your success ingetting back pay and maintaininga harmonious work relationship may depend on why you weren't gettingovertime in the first place. If your employer genuinely does notunderstand the law (and many don't), then it might just take a friendlyreminder.If, on the other hand, you've got amanager who is skirting overtime rules to cut costs, you might need totake a different approach. If management is really underhanded, youcould be fired. (Although your superior would have to give analternative explanation because terminating someone for requestingovertime is illegal -- and could open the company up to federalscrutiny and a lawsuit.)There are a few ways to approach the situation.. Gather information.Before you do anything, learn more about the law. Read about yourrights under the federal Fair Labor Standards Act. See minimum wage rates for each state.Or ask a question confidentially by calling the federal Department ofLabor at: (866) 487-9243. You can also get information from your statedepartment of labor.2. Start a notebook. "Keepmeticulous records," says Eric Kingsley, partner in Kingsley &Kingsley, a Los Angeles-based firm that represents employees in wageand hour issues. Some examples: time cards, a work diary with hours andduties, or a calendar with the times of day you start and stop work.
3. Try to pinpoint the problem.Is the overtime situation specific to select managers or ingrained inthe corporate culture? "In areas where people are instructed to workoff the clock, it's often not a companywide or corporate issue," saysNierman. Many times it is a local issue or rogue manager trying to savemoney, he says.In that instance, as in others, he says,"the most effective way -- and usually the quickest and most likely toget things remedied -- is to bring it to the attention of management."That might not be your directsupervisor," Nierman says. And if you suspect your own manager is theproblem, this is one way around him. "Work your way up the chain of command,"says Kingsley. "Most companies want to do right." Some avenues ofpossible help: the human resources department, a regional (as opposedto direct) manager, corporate counsel or any hot line the company mighthave established for airing grievances. 4.Investigate company remedies. To protect themselves (andtheir workers), many companies establish some sort of procedure to keepmanagement in the loop about potential problems. Sometimes it'sinformal, like chatting with the human resources administrator. Or itcould be more formal, like a special hot line.
5. Writedown your complaint.When you do approach your company, follow up with an e-mail or memo,"so you have something in writing to show a request was made," saysBorgen.6. Filea complaint with U.S. Department of Labor.If you lodge a complaint, the department will likely audit thecompany's wage and hour practices, often for many different positions.7. Findout if your state offers any assistance. Many states, suchas California, Oregon, Washington, New York, Pennsylvania and Illinois,have strong labor laws, says Kingsley. "There may be a remedy availableto you without hiring a lawyer." 8. Hirean attorney.While you're protected under federal law, this step could make yourwork life more difficult. "Usually my clients come to me after they'vealready left," says Kingsley. The federal statute of limitations forgoing back to an ex-employer for overtime is three years. Some states,such as California and New York, allow more time. But usually, to makeit worth an attorney's time, the dispute amount has to be at least$10,000 or several employees making similar claims.Bankrate.comis the Web's leading aggregator of information on financial productsincluding mortgages, credit cards, new and used automobile loans, moneymarket accounts, certificates of deposit, checking and ATM fees, homeequity loans and online banking fees. Visit Bankrate.comto get the tools and information that can help you make the bestfinancial decisions.
Source: Money & Work
CONTRIBUTE TO THIS STORY
