The federal floor for pay: a minimum hourly wage, and time and a half for hours over forty in a workweek, unless the job is exempt.
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The Fair Labor Standards Act sets a federal minimum wage and requires overtime pay of at least one and one-half times an employee's regular rate for every hour worked over forty in a workweek. Each workweek stands alone, so a long week cannot be averaged against a short one. The regular rate is not always the base hourly rate either: it includes most nondiscretionary bonuses, commissions and shift differentials. Where a state or city sets a higher minimum wage or a more protective overtime rule, the employee gets the more protective standard.
The most disputed question is exemption. Some salaried executive, administrative and professional employees are exempt from overtime, but only if they meet both a salary test and a duties test set by Department of Labor regulations. Job titles do not decide it, and being paid a salary does not decide it either: a salaried worker whose real duties are routine is often owed overtime. Common disputes also include off-the-clock work before and after shifts, automatic meal-break deductions, workers misclassified as independent contractors, and tips taken by managers.
An employee who is owed wages can recover the unpaid amount plus an equal amount as liquidated damages, together with attorney's fees and costs. Employees may sue together in a collective action, but under the FLSA each one must opt in by filing written consent, unlike an ordinary class action. The statute of limitations is short and runs separately from each payday, and it is longer when the violation was willful. Every month of delay can therefore cost recoverable pay.
Keep your own record of the hours you actually worked and save pay stubs, schedules and any messages about work outside your shift. Because the fee-shifting provision makes the employer pay the employee's attorney's fees when the employee wins, many wage lawyers take these cases without an up-front fee. Ask early, because each payday that passes can move older pay out of reach.
Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.
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