There are a number of ways in which your employer may shortchange your wages in violation of federal or state law. For example, your employer may claim that you can’t receive overtime pay unless you have permission to work extra hours (even though they then “let” you work the overtime hours without paying you) or refuse to pay you for time spent doing certain work-related activities (i.e. putting on safety equipment, checking e-mails from home, going to before- and after-hours meetings).
Below are examples of cases our attorneys handle and common violations we see in our practice.
Misclassified as exempt: Some employees are considered “exempt” from overtime pay and other federal pay provisions. This means they are not being paid overtime pay when they work more than 40 hours a week. Unfortunately, employees can sometimes be wrongly classified as “exempt” either because their employer doesn’t understand the law or is trying to avoid paying overtime. For instance, an employer may promote a cashier to “assistant manager” without changing the worker’s job duties to claim that he or she is an “exempt” manager and therefore not entitled to overtime wages. In that case, our attorneys can bring a claim on behalf of the employee for overtime pay the employee was wrongfully denied.
Misclassified as an independent contractor: Independent contractors typically work on a contract basis for other businesses. They are considered self-employed and do not receive overtime pay. Our attorneys handle lawsuits against employers who have either intentionally or unintentionally misclassified their workers as independent contractors despite the fact that theymeet the definition of an employee under the overtime law and should receive overtime pay for the overtime hours they work.
Employer fails to pay minimum wage: The federal minimum wage is $7.25 per hour, but some states have passed legislation enforcing a higher minimum wage. Despite federal and state laws, some employees are cheated out of minimum wage. Day-rate workers and tipped employees are particularly susceptible to minimum wage violations because of how they are paid.
Employer fails to pay for all hours worked: Time spent working for the benefit of your employer – regardless of whether you’re on the employer’s premises – is considered compensable time and should be paid. Examples of compensable time include time spent:
- Checking emails from home
- Turning on computers
- Cleaning equipment
- Putting on equipment
- Undergoing some security checks
- Working through meal breaks
- Attending training or safety classes
- Taking short breaks that last between 5 and 20 minutes
- Initial drive time from the company’s location to the first job of the day, or the last drive time of the day back to the company’s location
If your employer isn’t properly tracking your work time, it’s possible you’re getting cheated out of overtime pay because your employer is not properly calculating how much time you worked per week.
Employer pools tips with non-tipped employees: Tip pooling occurs when tipped employees (e.g., waiters, busboys, bartenders, etc.) put their tips in a general “pool” that is later equally divided among tipped workers only. While these tips belong solely to tipped workers, non-tipped employees (e.g., the business owner, managers, cooks, etc.) may wrongly collect a portion of these tips. As a result, the tipped workers’ hourly pay may fall below the required minimum wage because the tip pool is invalid.
Employer doesn't pay overtime each week: Some employers average workers’ hours over the course of two weeks, which is illegal and can cheat workers out of overtime pay. For example, an employee who works 30 hours one week and 50 hours the next has his hours averaged and his paycheck shows that he worked 40 hours each week. As a result, he never receives overtime pay for the 10 hours he worked in the second week. This is sometimes called "comp time." Another way improper comp time is used is instead of giving their workers overtime pay, some companies may give their workers “comp time” or hours that can be used toward a vacation or sick time. For private employers, this is illegal.
The employer pays “half-time.” Half pay, also known as a "Chinese overtime" or the “fluctuating workweek”, is when workers receive overtime pay at a rate one-half times their typical hourly rate. There are, however, strict criteria the employee must meet to be eligible for “half-time.”
These criteria include that the employee’s hours fluctuate between weeks, the employee receives a set salary that does not change with the number of hours he or she works, and that the worker and employer have a “clear mutual understanding” that the worker will receive the same amount each week regardless of hours worked. Some employees receive Chinese overtime without meeting these criteria, resulting in underpaid overtime and minimum wage violations.