HEADER H1

Subheader H2

Copy

HEADER

answers@overtime-lawyer.com

404-876-8100

OWED OVERTIME? DO I HAVE A CLAIM?

Free Consultation: We’ll Tell You the Answer

CONTACT US!

Se Habla Español

EXCEPTIONAL LEGAL REPRESENTATION

We have recovered more than $400 million in verdicts and settlements, including recoveries for thousands of employees in dozens of states. Our track record proves we are trial-ready. Let us support you in making a claim, finding protection from employee abuses and gaining full recovery so you can secure your rights and return to your daily life.

Unsure Whether You Want to Sue? No problem. We will give you the free advice – no obligation.  We understand that suing your employer is complicated.

WE FIGHT FOR YOU

If you feel you’re being treated unfairly at work, our qualified lawyers can help you assert your rights and understand your legal options.

All blue collar jobs

Any worker who earns less than $684 per week

Paralegals

Office Assistants

Document Clerks

Secretaries

Service Technicians

Construction Workers

Retail jobs

Call centers employees

Mechanics

Machine service/repair

Home repair

Forklift operators

Local delivery driver

Delivery worker

Computer technician

Computer repair

Painters

Roofers

Police

Landscaping jobs

Laborers

Craftsmen

Iron workers

Plumbers

Mechanics

Electricians

Carpenters

Security Guards

Cleaning and Janitorial Workers

Operating engineers

Inside Sales Jobs (with less than 50% commission)

Most restaurant jobs (cook, dishwasher, bartender, server)

Maintenance Workers

Warehouse workers

FAQS

Our attorneys have recovered for thousands of employees on overtime claims.

MORE THAN $400 MILLION 
RECOVERED IN VERDICTS AND SETTLEMENTS

We’ll represent your case effectively without collecting fees until we reach a favorable settlement or win your employment claim.

YOU PAY NOTHING UNLESS WE COLLECT FOR YOU

CALL OR TEXT NOW FOR A FREE CASE ANALYSIS

We believe knowledge is power: we’ll explain your rights regardless of whether you want to hire us to make a claim.

WHEN YOU'VE BEEN WRONGED,

WE MAKE IT RIGHT

OUR LAWYERS HAVE OVER 80 YEARS OF COMBINED EXPERIENCE

WE DON'T REST UNTIL YOU GET JUSTICE 

GET A FREE CASE EVALUATION

 Phone: 404-876-8100

Fax: 404-876-3477

Website: www.hallandlampros.com

FAQS ANSWERS

Am I covered for overtime under the Fair Labor Standards Act (“FLSA”)?

You are covered under the FLSA if:

1. Your employer has at least two employees and (1) gross annual revenues (total sales) of $500,000 per year; or (2) is a hospital, business providing medical or nursing care for residents, school and preschool, or government agency; OR

2. Your work regularly involves you in commerce between States (“interstate commerce”). Examples of employees who are involved in interstate commerce include those who: produce goods (such as a worker assembling components in a factory or a secretary typing letters in an office) that will be sent out of state, regularly make telephone calls to persons located in other States, handle records of interstate transactions, travel to other States on their jobs, and do janitorial work in buildings where goods are produced for shipment outside the State.

Also, domestic service workers (such as housekeepers, full-time babysitters, and cooks) are normally covered by the law.

If you are covered under the FLSA, your employer must pay you minimum wage and overtime for all hours worked in excess of 40 hours unless your particular job fits an FLSA exemption. The primary exemptions are (1) Executive; (2) Administrative; (3) Professional: (4) Outside Sales; (5) Computer Employees:

1. Executive Exemption

To qualify for the executive employee exemption, all of the following tests must be met:

• The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $684* per week;

• The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise;

• The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and

• The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.

2. Administrative Exemption

To qualify for the administrative employee exemption, all of the following tests must be met:

• The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $684* per week;

• The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and

• The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

3. Professional Exemption

To qualify for the learned professional employee exemption, all of the following tests must be met:

• The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $684* per week;

• The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;

• The advanced knowledge must be in a field of science or learning; and

• The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

4. Outside Sales Exemption

To qualify for the outside sales employee exemption, all of the following tests must be met:

• The employee’s primary duty must be making sales (as defined in the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and

• The employee must be customarily and regularly engaged away from the employer’s place or places of business.

5. Computer Employee Exemption

To qualify for the computer employee exemption, the following tests must be met:

• The employee must be compensated either on a salary or fee basis (as defined in the regulations) at a rate not less than $684* per week or, if compensated on an hourly basis, at a rate not less than $27.63 an hour;

• The employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the duties described below;

• The employee’s primary duty must consist of:1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;2) The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;

3) The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or

4) A combination of the aforementioned duties, the performance of which requires the same level of skills.

There are additional exemptions that apply to less common job duties. Click here to see a list of such exemptions. We also can identify those exemptions in a free consultation. Some of those exemptions include the following jobs for which employers usually are not required to pay overtime.

• Farm workers

• Recreational establishment workers

• Seasonal amusement workers

• Certain commissioned workers of service or retail establishments

• Domestic service workers who are residing in the employer’s residence

• Aircraft, auto, boat, trailer, truck, or farm implement salespersons
  

  • Air carrier as well as railroad workers, taxi drivers, local delivery workers and other motor carriers who are paid based on approved trip rate plans

What jobs generally are covered under the FLSA’s overtime protections?

The exemptions provided by FLSA Section 13(a)(1) apply only to “white-collar” employees who meet the salary and duties tests set forth in the Part 541 regulations. The exemptions do not apply to many office workers and also do not apply to manual laborers or other “blue-collar” workers who perform work involving repetitive operations with their hands, physical skill and energy. FLSA-covered, non-management employees in production, maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers are entitled to minimum wage and overtime premium pay under the FLSA, and are not exempt under the Part 541 regulations no matter how highly paid they might be.

Can an employer fire me or retaliate for asking for overtime?

It is illegal for your employer to fire you or retaliate in any way for making a federal claim for back wages. The FLSA prohibits employers from retaliating against any employee for requesting overtime compensation or proper wages, or filing a lawsuit seeking such compensation. Examples of prohibited retaliation include firing employees, making false statements about employees, providing less preferential treatment relating to shift or table assignments to any employee, harassing employees, threatening employees in any way, interfering with employee’s current or future employment, threatening to report or reporting employees relating to immigration status, and all other retaliatory conduct.

What does it cost for legal advice as to whether I have an overtime claim?

Nothing. We are open 24/7 and will provide a free consultation on whether you have a claim. Text or call 404-876-8100 for the free consultation (or go to this website homepage and enter your information for a consultation).

What does it cost to bring an overtime claim?

Nothing. We will incur all costs. You will pay nothing unless you recover. Under federal law, your employer may be liable for two times your damages plus attorneys’ fees and expenses. This means that, usually, the attorneys’ fees are paid separately so that it does not reduce your recovery.

What states offer overtime protections in addition to the FLSA?

The following states have overtime protections that in some cases are greater than the FLSA: California, New York, Alaska, Colorado, Nevada, Washington.

The following states do not offer greater protections than the FLSA except they apply to some employees that are exempt from the FLSA: Kansas, Michigan, Minnesota, Pennsylvania, Vermont, West Virginia.

How long do I have to bring an FLSA overtime or wage claim?

You have 2 years to bring a claim if the employer’s FLSA violation was not willful. If the employer either knew or showed reckless disregard for whether its conduct was prohibited by the FLSA, the violation is considered willful and you have 3 years to bring a claim.

Can I bring an FLSA overtime claim against my former employer?

You often can bring a claim against a former employer even if you stopped working there two years (and often three years) before. Because employers are required to keep wage records, a delay in filing a claim usually will not prevent you from getting the evidence you need to win the case.

What can I recover if my employer owes me back wages for overtime?

Federal law usually provides a recovery of two times your unpaid wages. If an employer underpaid you $1,000, you could recover $2,000 (the $1,000 plus and additional $1,000 in liquidated damages plus) attorneys’ fees and costs. 

Can I recover for overtime if I did not pay taxes on the wages or tips I was paid?

You can have a valid claim under the FLSA even if you did not pay taxes on the claim. Courts have held that whether you properly paid taxes is a separate issues that is not connected with an employer’s violation of the FLSA. You therefore can recover under the FLSA even if you did not pay taxes. Solano v. A Navas Party Prod., Inc., 728 F. Supp. 2d 1334 (S.D. Fla. 2010) (“Employee who failed to pay federal income taxes was not barred by in pari delicto from suing under the FLSA; employee was engaged in a legal occupation when employed by defendants, and his wrongdoing, failing to pay federal income taxes on wages already earned, was in no way connected with defendants’ alleged failure to properly compensate him. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq.”); Armstead v. Jay Shree Umiya, Inc., 3:19-CV-00658-CLS, 2021 WL 1087221, at *4 (N.D. Ala. Mar. 22, 2021)

 If I signed an agreement to work without overtime can I still recover?

Even if you signed a contract that you will not be paid overtime, you still are entitled to overtime if your job fits within the FLSA requirements. 

Can an employer pay me a salary and not pay me overtime?

Many employers try to save money by “putting their employees on salary.” The employer will then tell the employees that they are not entitled to overtime because they are on salary. This is illegal unless the employer is able to show that the employer is not covered under the FLSA or that an overtime exemption exists for the job. Whether your employer considers you to be on salary is irrelevant to the overtime determination.

If I agreed to be paid a salary without overtime, does that waive my claim for overtime?

You cannot waive your rights under the FLSA to overtime. This means that even if you agreed to be paid on salary or if you agreed to be paid as an independent contractor – you still are entitled to overtime if your job fits within the FLSA requirements. It is completely irrelevant whether you agreed to be paid a salary for purposes of the FLSA. It is completely irrelevant whether you agreed to be paid as an independent contractor. 

Are police, fire fighters, paramedics, and other first responders entitled to overtime?

Yes. The FLSA also applies to police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees, regardless of rank or pay level, who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work. 

Are there different laws in different states relating to overtime and minimum wage?

Many states have laws (for example California and New York) that provide greater protections than the FLSA. State specific minimum wage and overtime laws are found here (https://www.dol.gov/agencies/whd/minimum-wage/state) We can discuss state specific guidelines in a free consultation.

Is an employer required to pay overtime if I am an independent contractor?

An employer is not required to pay overtime to an independent contract. The key issue however is this: Is your employer properly classifying you as an independent contractor for purposes of avoiding overtime? Employers often label their employees as independent contractors: but the label does not apply. Also, you cannot “agree that you are an independent contractor if you really are not.” The FLSA prohibits this practice because it would result in you “waiving” your right to overtime. Here is the independent contractor test:

Jobs where employers often misclassify employees as independent contractors:

• Cleaning

• Home repair

• Home service

• Maintenance

• Painters

• Insurance inspectors

• Computer technicians

• Local delivery

How do I know if I am truly an independent contractor so that I am not entitled to overtime?

Your employer does not get to decide whether you are an employee, or an independent contractor, and you cannot waive your right to overtime by agreeing that you are an independent contractor. We have won over a million dollars on behalf of workers who were forced to sign an agreement that they were independent contractors when in fact they were not. They were entitled to overtime and the workers got paid their back wages.

Whether you are an independent contractor is decided by factors set by the United States Supreme Court. Hall & Lampros has substantial experience applying these factors and can give you a good idea of whether you are properly classified in a short phone call. The factors set by the United States Supreme Court are:

1. The extent to which the services rendered are an integral part of the principal’s business (how important is what you do to your employer: if you provide cleaning services for a cleaning company you are an integral part of the company’s business; if you provide painting services for a painting company, you are integral).

2. The permanency of the relationship (is it a temporary engagement or permanent (over a lengthy period of time))

3. The amount of the alleged contractor’s investment in facilities and equipment (does your employer pay for your tools, work supplies, training, computers)

4. The nature and degree of control by the principal. (who decides when you work, where you work, and what you do?)

5. The alleged contractor’s opportunities for profit and loss (does your employer assume the risk and get most of the rewards from your work?)

6. The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.

7. The degree of independent business organization and operation. (do you have a separate business organization, separate office location, separate computers, separate phone lines?)

If I agreed to be an independent contractor without overtime, does that waive my overtime claim?

You cannot waive your rights under the FLSA to overtime. This means that even if you agreed to be paid as an independent contractor – you still are entitled to overtime if your job fits within the FLSA requirements. It is completely irrelevant whether you agreed to be paid as an independent contractor. 

Am I entitled to overtime if I am paid with a 1099?

The rules relating to 1099 employees are the same as with independent contractors. An employer is required to pay you overtime – regardless of whether you are paid by 1099 – if you are not exempt under the FLSA and you do not qualify as an independent contractor.

Can my employer require me to show up early, stay late, attend meetings or training without pay and should such time be considered when calculating overtime?

The FLSA requires your employer to pay you minimum wage (and applicable overtime if you work more than 40 hours per week) for the time spent at all meetings, including safety meetings and beginning of the day meetings. Courts often consider such events that are less than 10 minutes to be de minimis. Court usually consider any unpaid work for more than 10 minutes to be a violation of the FLSA. See, Daniels v. Sanchelima & Assocs., P.A., No. 1:15-cv-21321, 2016 WL 4903065, at *4 (S.D. Fla. Jan. 20, 2016) (J. Ungaro); Freese v. Treecycle Land Clearing Inc., No. 17-CV-81169, 2019 WL 2637298, at *3 (S.D. Fla. Apr. 10, 2019).

The Supreme Court in Anderson explained the de minimis rule as follows:

When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act. It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.

Burton v. Hillsborough Cty., Fla., 181 F. App’x 829, 838 (11th Cir. 2006).

When applying the de minimis rule, a court considers three factors: “(1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.” Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir. 1984).

Jackson v. ThinkDirect Mktg. Grp., Inc., No. 1:16-CV-03749, 2019 WL 8277236, at *5 (N.D. Ga. Dec. 9, 2019).

A compensable “integral and indispensable” activity is rendered noncompensable if the time spent performing that activity is de minimis. “Courts have found as a matter of law a general threshold for de minimis as ten minutes or less, even if the work is otherwise compensable.” See Daniels v. Sanchelima & Assocs., P.A., No. 1:15-cv-21321, 2016 WL 4903065, at *4 (S.D. Fla. Jan. 20, 2016) (J. Ungaro).

Freese v. Treecycle Land Clearing Inc., No. 17-CV-81169, 2019 WL 2637298, at *3 (S.D. Fla. Apr. 10, 2019)

If your employer makes you show up or stay late for at least ten minutes, you are entitled to compensation under the FLSA. See, Daniels v. Sanchelima & Assocs., P.A., No. 1:15-cv-21321, 2016 WL 4903065, at *4 (S.D. Fla. Jan. 20, 2016) (J. Ungaro); Freese v. Treecycle Land Clearing Inc., No. 17-CV-81169, 2019 WL 2637298, at *3 (S.D. Fla. Apr. 10, 2019).

Is travel time considered for overtime?

Under The Portal to Portal Act of 1947 (29 USC §§251-262), your employer generally is not required to pay you for (1) the time spent travelling to your place of work (or if you work at multiple locations, to your first place of work); and (2) the time spent travelling home from your last place of work. Your employer generally is required to pay you for all travel during the workday. So, any required travel between work sites or work locations during the day usually must be compensated under the FLSA.

Is “on call” time at nights or on weekends considered for overtime?

It depends. If the on-call conditions are so restrictive and the calls or duties during that on-call time so frequent that the employee cannot effectively use that time for personal purposes, then the on-call time may be compensable. Typically, if you can be “on-call” from home, your time may not be compensable. However, if the on-call requirements are so restrictive that it limits your ability to use that time for personal purposes, you may be entitled to payment for your on-call time. The Department of Labor’s treatment of this issue is here: Fact Sheet #22: Hours Worked Under the FLSA.

In Gregory v. Quality Removal, Inc., No. 14-21480-CIV, 2014 WL 5494448, at *8 (S.D. Fla. Oct. 30, 2014), the court held “Under long-standing FLSA precedent, time in which an employee is “engaged to wait”, that is, “time spent primarily for the benefit of the employer and his business,” is compensable. See Armour & Co. v. Wantock, 323 U.S. 126, 132, 65 S.Ct. 165, 89 L.Ed. 118 (1944).”

In Lurvey v. Metro. Dade Cty., 870 F. Supp. 1570, 1579 (S.D. Fla. 1994) held that to determine whether on-call time is compensable under FLSA, a court must examine: (1) the agreements between the particular parties; (2) appraisal of their practical construction of the working agreement by conduct; (3) consideration of the nature of the service; and (4) all of the surrounding circumstances. Note: The third and fourth factors are essentially embodied in the seven-factor test set out below established by the Ninth Circuit, Owens, 971 F.2d 347.

In Owens v. Local No. 169, Ass’n of W. Pulp & Paper Workers, 971 F.2d 347, 351 (9th Cir. 1992), as amended (Aug. 18, 1992), the court held:

Courts have considered a number of factors in determining whether an employee plaintiff had use of on-call time for personal purposes:

1. whether there was an on-premises living requirement;

2. whether there were excessive geographical restrictions on employee’s movements;

3. whether the frequency of calls was unduly restrictive;

4. whether a fixed time limit for response was unduly restrictive;

5. whether the on-call employee could easily trade on-call responsibilities;

6. whether use of a pager could ease restrictions; and

7. whether the employee had actually engaged in personal activities during call-in time.

Such a list is illustrative, not exhaustive. No one factor is dispositive.

Is time spent responding after hours to emails or phone calls compensable and included in overtime?

It depends. After hours emails and calls are likely compensable assuming the time is not di minimus (takes longer than 10 minutes or so). If, however, the after-hours calls or emails are just a quick simple reminder or question, such as asking if the employee can return to work, that time spent answering “yes” or “no” is likely not compensable.

Burnette v. Northside Hosp., 342 F. Supp. 2d 1128, 1135–36 (N.D. Ga. 2004) (“Put another way, Burnette’s only on-call duty was to return any telephone calls from Schempp concerning after-hours work and tell him “yes” or “no.” In light of this Circuit’s law, the law of other circuits and plain common sense, no reasonable person could believe that this minimal request by his employer severely restricted Burnette’s use of his personal time or restricted it at all.”)

Courts generally find that after hours work that takes less than 10 minutes is not compensable.

Freese v. Treecycle Land Clearing Inc., No. 17-CV-81169, 2019 WL 2637298, at *3 (S.D. Fla. Apr. 10, 2019) (“A compensable integral and indispensable” activity is rendered noncompensable if the time spent performing that activity is de minimis. Courts have found as a matter of law a general threshold for de minimis as ten minutes or less, even if the work is otherwise compensable.

Moreover, the after-hours calls or emails cannot be requests by the employee, such as requesting time off.

Jenkins v. Anton, 922 F.3d 1257, 1262 (11th Cir. 2019) (“The Court discounted the emails that Employee sent after normal business hours because many of them would have taken Employee no more than two or three minutes to draft. Others were unrelated to work or asked for time off.”).

However, if the after-hours calls or emails are frequent, than it could raise to the level of compensable. In a situation where your employer asks you quick, short questions but asks several dozens of them in short secession, you may have a claim for unpaid hours.

Jackson v. ThinkDirect Mktg. Grp., Inc., No. 1:16-CV-03749, 2019 WL 8277236, at *5 (N.D. Ga. Dec. 9, 2019) (“When applying the de minimis rule, a court considers three factors: “(1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.”).

Can my employer require me to go to arbitration on my overtime claim?

Many employers require their employees to sign an “arbitration agreement” agreeing to submit any employment disputes to arbitration. The Supreme Court in 2018 affirmed that employers can compel arbitration of FLSA claims, including FLSA class action (“collective action”) claims. Epic Systems Corp. v. Lewis, 584 U.S. ___, 138 S.Ct. 1612 (2018). If you signed such an agreement, you would need to pursue your claim in arbitration. But if you have a valid claim, there is nothing about arbitration that should interfere with your recovery. Employers are permitted to compel employees to arbitrate their claims pursuant to the Federal Arbitration Act. 9 U.S.C. § 1, et. seq.

According to the American Bar Association, arbitration is a private process where disputing parties agree that one or several individuals (arbitrators) can decide about the dispute after receiving evidence and hearing arguments. Your rights in arbitration are the same rights that you have if you file a lawsuit (except that there are limitations on your ability to appeal). When the arbitration agreement states that the arbitration is binding, the decision is final, can be enforced by a court, and can only be appealed on very narrow grounds. https://www.americanbar.org/groups/dispute_resolution/resources/DisputeResolutionProcesses/arbitration/

Importantly, you are entitled to the same rights and damages at arbitration as you would in a lawsuit filed in a court. Arbitration does not protect the employer from claims for violation of the law. Arbitration is favored by some defendants because it can provide a more streamlined and quicker resolution of the case.

Will mandatory arbitration hurt my overtime claim?

Arbitration should not hurt your claim as you have the same rights in arbitration as you do in court. Hall & Lampros attorneys have successfully recovered at arbitration in over 200 FLSA claims.

Privacy Policy

TYPICAL JOBS THAT REQUIRE OVERTIME 

UNDER FEDERAL LAW

Employment Lawyers Serving Clients Nationwide