If you have worked more than 40 hours in a workweek and have not received overtime pay for hours worked over 40 hours, you may have an unpaid overtime claim. It is crucial that you speak with a Nashville unpaid overtime attorney who can determine whether you have a viable legal claim for overtime pay – and a lawyer who also knows how to seek compensation for the overtime wages that you earned.
It’s time to talk to a lawyer who will advocate for you and your rights. Contact The Employment and Consumer Law Group today to find out more about your legal options.
Common Unpaid Overtime Issues
When an employee is assigned a number of hours to work in a workweek, any hours worked over 40 hours count as overtime when an employee is a non-exempt employee. Issues can commonly arise that results in hours worked over 40 hours per week not being compensated as overtime, such as:
- Improperly classifying employees as salaried, exempt employees
- Classifying employees as independent contractors
- Asking employees to begin work before their assigned shift or continuing to work after their scheduled shift ends – working “off the clock”
- Employers automatically clocking employees out for lunches or breaks or automatically deducting assigned meals or breaks from hours worked, even when the worker doesn’t actually get to take these breaks
When people refer to an employee as being “exempt,” it means they are exempt from the regulations of the Fair Labor Standards Act (FLSA). This means they are exempt from various wage and hour rules including overtime pay rules.
Certain kinds of jobs are exempt from the statute by definition, including agricultural workers or workers governed by other statutes and regulations, such as railroad workers or truck drivers. Generally speaking, an employee can be classified as exempt if they meet the three following requirements:
- They are paid at least $455 per week
They are paid on a salary, as opposed to hourly, basis
- They perform exempt job duties, including:
- Executive duties, such as regularly supervising two or more employees, having management as the primary duty of the job, and having input into the status (hiring, firing, promoting) of other employees
- Learned professional duties, such as those of lawyers, doctors, dentists, teachers, registered nurses, architects, engineers, scientists, or pharmacists
- Creative professional duties, such as those of actors, musicians, composers, writers, cartoonists, or journalists
- Administrative duties, which are office/nonmanual work that is directly related to the management or business operations of the employer or the employer’s customers, and a primary component of which involved the exercise of independent judgment about matters of significance
Some employers attempt to skirt overtime pay rules by classifying workers as independent contractors, who are not entitled to overtime pay like employees are. Whether a worker is an employee or an independent contractor depends on factors such as:
- Whether the employer has the right to direct and control the work performed by the worker, including when and where to work, specific instructions in how to perform assigned tasks, evaluation of the worker’s performance, and training on how to do the assigned tasks
- Whether the employer has the ability to control the financial and business aspects of the worker’s employment, including providing equipment for the worker’s use, reimbursing the worker’s expenses, guaranteeing a wage as opposed to a contractual fee and the worker offering identical services to other companies and the worker having an opportunity for profit or loss
- How the parties structure their relationship, including how they describe their relationship, whether the worker is provided employee-like benefits, and whether the parties’ relationship is intended to be permanent
Industries Where Unpaid Overtime Problems Are Common
Any employer who has hourly paid employees is at risk of having problems for unpaid overtime. However, some industries are more susceptible to unpaid overtime issues. Employers who are more likely to have unpaid overtime problems include:
- Restaurants and hotels – The restaurant and hotel industries are considered some of the biggest wage and hour violators, with hundreds of unpaid overtime lawsuits filed against employers in these industries each year. Employees frequently allege that they are not paid for overtime, are commonly asked to work before or after the scheduled ends of their shifts or during unpaid meal breaks, or have their time cards altered by supervisors and managers to avoid overtime liabilities.
- Health care providers – The health care industry is especially susceptible to unpaid overtime violations, as health care workers must work long hours and often work off the clock to ensure that patients receive the care that they need. However, the duty to patients does not relieve health care employers of their obligation to correctly pay overtime.
- Janitorial services – Janitors and custodial workers are frequently victimized by failures to pay overtime. This is often due to the fact that such workers are misclassified as independent contractors, which ostensibly relieves their employers of the obligation to pay overtime.
- Retail stores – Like workers in the restaurant and hotel industries, workers in retail often find themselves the victims of overtime violations when they are asked to work off the clock, during meal breaks, or have their time cards altered to reduce their hours under overtime limits.
- Residential construction – Workers in residential construction can be victimized by unpaid overtime, especially when their employers improperly classify such workers as independent contractors
What to Do If You Are Not Being Paid OT
If you are not being paid overtime that you believe you are entitled to, you should first raise the issue with your employer. In some cases, automated timekeeping systems may cause you to be automatically clocked out during times when you were actually on the job. Your employer may acknowledge the timekeeping error and correct your paycheck without incident.
If your employer asserts that you are not entitled to overtime pay, you should speak with a Nashville unpaid overtime lawyer to determine whether the circumstances of your situation indicate that you may be entitled to overtime pay. An attorney can also calculate how much overtime pay you may be entitled to.
If you have a claim for overtime pay, you may attempt to settle your unpaid overtime pay with your employer. Be wary if your employer tries to get you to sign a release before they will offer you the unpaid overtime pay you are owed. You should have an experienced unpaid overtime attorney look over any release or document your employer asks you to sign to receive any overtime pay. You should definitely contact an attorney if your employer refuses to let you have a copy of the release to review, have an attorney review it, or otherwise insists that you sign the document on the spot.
If your employer refuses to pay you the overtime pay you claim without conditions, you may be entitled to bring an unpaid overtime claim under the Fair Labor Standards Act and/or the Tennessee Wage Regulations Act.
Unpaid Overtime Settlement Process
In many cases, where the employer’s failure to pay overtime is patently obvious, the employer may simply choose to settle and pay the unpaid overtime, either out of a genuine desire to correct their mistake or a desire to avoid expensive litigation. As a result, many unpaid overtime claims settle long before they ever see a jury or the inside of a courtroom.
It is important to note that any unpaid overtime claim brought according to the FLSA generally must be approved by the U.S. Department of Labor or by a court to be binding and enforceable on the parties. This is because the courts have ruled that the purpose of the FLSA to protect workers from abuse is served by having an independent review of any settlement of an unpaid overtime claim.
The DOL or a court will approve the settlement of an unpaid overtime claim under the FLSA only if the settlement is deemed “fair and reasonable.” Courts are also beginning to reject settlements that contain clauses requiring employees to keep the terms of settlement confidential, as such confidentiality provisions are seen as efforts by the employer to keep other employees from learning that they too may have unpaid overtime claims.
Courts are also wary of unpaid overtime settlements that include broad releases of claims against an employer, rather than just a release of claims relating to back pay, since unpaid overtime claims also tend to accompany other wage and hour claims under state and federal laws or may entitle an employee to liquidated damages.
How Our Nashville Unpaid Overtime Lawyers Can Help
When you haven’t received overtime pay that you believe you are entitled to, you should immediately speak with an experienced Nashville unpaid overtime attorney who can review your case to determine whether your employer has failed to pay you overtime you are legally entitled to.
The dedicated and knowledgeable legal team of The Employment and Consumer Law Group is prepared to review the circumstances of your employment to determine whether you are lawfully eligible for overtime compensation. Our legal team can try to work with your employer and with the DOL and the courts to obtain a swift and reasonable settlement of your unpaid overtime claim. If necessary, our legal team will pursue your claim in court to pursue the compensation and damages you are entitled to under the law.
You deserve to be paid for the hard work you’ve performed for your employer. Contact us today to schedule a consultation to learn more about your rights and options.