An Employees Guide to Overtime Wage Claims
Many employers do not pay employees properly. In most years, the Department of Labor receives approximately 35,000 complaints from employees about unpaid wages or benefits. These are some tips to make sure you are being paid properly.
- Keep a record of your hours independent of those that your employer may keep. Many employers fail to have adequate record keeping systems so it is often your word against the employer’s word; and you are given the benefit of the doubt.
- If the Company has a policy and procedure manual, review it and keep it in a safe place at your home or office. Read what it says about hours and overtime pay. If your Company is not following its own policy, talk to someone at HR about it. For example, some companies have a policy that overtime must be authorized by a supervisor. If you are working overtime without authorization, you may not be able to enforce your claim.
- If your Company routinely assigns overtime work and you want it but do not receive it very often, make notes about who gets the overtime. This could be the basis for a discrimination complaint if, for example, overtime is only given to white males and the workforce is more diverse.
- If you are paid more than $455 per week and not paid overtime for work over 40 hours per week, your job duties may not qualify your employer to exempt you from overtime. There are a number of exemptions to overtime laws for executives, administrators, or professionals, however it makes sense to find out if you have been properly classified. For example, if you have no hiring or firing authority, if you do not supervise two or more employees or if you have no authority to make independent decisions that affect the management of the company you are working for, you may not be exempt no matter what title your employer gives you. “Executive Administrative Assistant” does not mean you are an exempt employee if your job duties are limited to answering phones, typing letters and ordering office supplies.
- Do not wait to make a claim once you believe you are not being paid properly. In most cases, overtime wages can be recouped for two years. In cases where the employer can be shown to have known he was not paying his employees correctly and was doing it anyway, you may be able to go back three years. But do not wait more than two years since your claim may be lost. As soon as you become aware that you are not being properly paid you should tell your employer. If he does not remedy the problem or if he gives you an explanation that you do not believe is accurate you should consult with an attorney.
- If you complain, do it in writing. Write an email or a memo or a letter to your employer and date it. If it is dated or time stamped there is no way the employer can later claim he was not aware of the claim.
- Do not be arrogant or confrontational or make threats about filing a lawsuit if you make a claim. If the employer is sophisticated he will generally know what will happen if he fails to remedy the problem. If the employer genuinely believes, for example, that you are exempt, he should look into your claim, consult his lawyer and get back to you with an explanation. If you are not satisfied with his explanation, consult with your own lawyer. Not all cases of exempt employees are black and white.
- If your employer changes your job duties to include supervision of two or more employees or otherwise tries to make you an exempt employee after you have complained, you should let him know that you are still entitled to past overtime wages for the period you were misclassified.
- If all else fails, sue your employer if he refuses to pay you properly or if he terminates you. Retaliation is unlawful and will entitle you to a variety of damages in addition to your overtime wages. You do not have to bring your claim to the Department of Labor or to the EEOC. You can go straight to court.
- Before you consult with an attorney, collect all your papers and made a detailed list of the hours worked in each week in which you claim you are entitled to overtime pay.