Miscalculations of Overtime
Under the Fair Labor Standards Act (FLSA), nonexempt employees are required to get overtime pay for every hour over 40 that they work. Overtime pay is to be one and a half times the employee’s standard hourly wage. If an employer is covered by the FLSA, and does not pay an employee the proper overtime wages, then that employer is in violation of the law.
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What are some ways that an employer might miscalculate overtime pay?
One issue with overtime pay is that not all employees are entitled to get paid overtime wages. Employees in executive and administrative roles, and professional employees such as attorneys and doctors are exempt from the FLSA’s overtime requirements, as are certain other employees. If an employee is mistakenly, or purposefully categorized by his or her employer as an exempt employee when in fact they are nonexempt, then the employer could be failing to pay the employee overtime wages, and would be in violation of the FLSA.
Another way that employers violate the FLSA is by miscalculating the number of hours that an employee worked. If an employee has been working prior to his or her shift, after his or her shift, or through unpaid lunch breaks, then that employee might have worked more than 40 hours, but some of that time might not have been properly kept track of, resulting in the employee not being paid for all of the time that they worked. This could mean that the employee was paid for 40 hours of work, but actually worked 50. The result would be that the employee not only lost 10 hours’ worth of pay, but actually lost 15 hours’ worth of pay based on the lost overtime pay.
Similarly, an employer might deny overtime pay to an employee by averaging the amount of pay and wages over the course of several weeks. If an employee works 50 hours one week, and 30 the next, they should not be compensated in the same was as if they worked 40 hours each week. Although the total number of hours would have been 80 in both cases, overtime pay is based on the hours beyond 40 that an employee works in a single week. Thus if an employee makes $10 an hour, and works 40 hours a week, two weeks in a row, that employee would make $800. However, if the employer works 50 hours one week, followed by 30 the next, he or she would make $850 ($400 for the first 40 hours the first week, $150 for the 10 hours of overtime, and $300 for the second week). An employer who treats these two scenarios the same would therefore be in violation of the FLSA.
It is also possible that an employer is not complying with the FLSA’s regulations regarding overtime pay as a result of failing to include all of the various types of pay that are meant to be used in calculating time and a half wages. In calculating overtime, employers must include bonuses, as long as they are non-discretionary. Also, shift differentials must be taken into account. Thus if day and night shifts have different pay rates, that must be incorporated in the calculating of overtime pay. If an employee works multiple jobs at the same company, at different pay rates, this must also be included in calculating overtime rates. However, discretionary bonuses, premium overtime rates for weekend work or holidays, travel expenses, and benefits such as health insurance do not need to be included in the calculations.
I believe my employer miscalculated my overtime pay, what should I do?
It is possible that your overtime pay was accidentally miscalculated, so check with your employer to see if the pay discrepancy was an unintentional error. If your employer refuses to pay you your proper overtime wages in violation of the FLSA keep track of all of your work related records, including any login information, hours that you worked, and your wages.
If your employer is refusing to pay you for all of the hours that you worked, or overtime for the hours that you worked beyond 40 in a week, you should consider contacting an attorney to ensure that your rights are protected and that you are compensated for all of the time that you have worked.
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At Stern Law, PLLC, we have compassionate and caring attorneys ready to work with you to find the best solution to your employment law related legal issues. Contact Stern Law, PLLC today at (844) 808-7529 for a free consolation with an experienced employment attorney.
