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How to Handle Unfair Overtime Pay: Who Gets Your Complaint?

written by: Daniel Brecht•edited by: Linda Richter•updated: 8/9/2010

Learn about your right to overtime pay! Whom do you speak to when you need to file a complaint regarding any unfair overtime pay issue? The author explains how to complain about unfair overtime pay, including what to do and how to handle it.

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    Labor Laws About Unfair Overtime Pay

    In the United States, there are laws and regulations that govern unfair overtime pay. There are exemptions and exceptions for paying an employee overtime. Both the Fair Labor Standards Act (FLSA) and U.S. Department of Labor (DoL) govern who is exempt (i.e., a job classified as not being entitled to overtime compensation) and non-exempt (i.e., a job classified as being eligible to receive overtime compensation) from overtime pay. "Determining whether a job is 'exempt' or 'non-exempt' requires an analysis of your job duties and pay structure." [1]

    FLSA uses three questions (see the image section) to determine the exception status of an employee. Not all employers or jobs are covered in FLSA regulations. Employees who are unsure about whether or not they are entitled to overtime pay should check to see if their state has enacted overtime laws. They can also make contact with the local office of the Department of Labor before complaining.

    Do you know how to complain about overtime pay policies? Here are some resources:

    "The FLSA requires that most employees in the United States be paid at least the federal minimum wage [not less than $7.25 per hour effective July 24, 2009] for all hours worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek." [2]

    According to the U.S. Department of Labor, Wage and Hour Division, "Overtime Pay May Not Be Waived: The overtime requirement may not be waived by agreement between the employer and employees." [3]

    "The FLSA allows you to recover the overtime pay you are owed for hours worked within two years back from the date you file suit or consent to join an existing lawsuit." [4]

    Latest News from the American Federation of Labor - Congress of Industrial Organizations (AFL-CIO): "Overtime Pay Under Attack"

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    How to Solve an Unfair Overtime Pay Issue

    There are many employers who make it mandatory to work overtime, which is considered working more than eight hours a day or more than 40 hours in a week, and they will not pay their employees for any part of it. Other employers seek ways to save themselves money and prefer to give compensatory time (comp time) off instead of overtime pay to their employees. This can only be acceptable if both parties (the employee and employer) agree to it. If it's unfair and not right, the employee has the right not to accept the comp time and pursue his/her right to overtime pay.

    There are U.S. laws that require employers to pay their employees for overtime work; for example, the FLSA allows recovery for unpaid overtime for hours worked.

    The only way to solve an unfair overtime pay issue is by doing something about it: Complain. In order to complain, you need to know if you are entitled to overtime pay. The best advice is to know about overtime labor laws and the right to overtime pay. Also, determine if the FLSA covers the job in question.

    If you're not getting paid for overtime, who do you contact? Follow these suggestions...

    • Speak to a Human Resources Representative or an Advisor.
    • Contact the State's Labor Office.
    • File a complaint with the U.S. Department of Labor (DoL) or the state labor office, Wage and Hour Division (WHD).
    • File a private lawsuit.

    Note: A person can file claims under both the state overtime law and the FLSA at the same time.

    Other options include...

    • Speaking to a legal attorney.
    • Seeking justice yourself by going to a small claims court.

    Note: No employees have to put up with an unfair overtime pay issue. It's within their rights to seek help as well as receive it. They are also entitled to filing a claim without being subject to retaliation by their employer.

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    Sources and Useful Web Sites

    Sources

    [1] Nichols Kaster, PLLP (Overtime Cases - Overtime Law): http://www.overtimecases.com/overtime.aspx

    [2] U.S. Department of Labor (DOL's FairPay Overtime Initiative): http://www.dol.gov/whd/regs/compliance/fairpay/main.htm

    [3] U.S. Department of Labor (Fact Sheet #23: Overtime Pay Requirements of the FLSA): http://www.dol.gov/whd/regs/compliance/whdfs23.pdf

    [4] Nichols Kaster, PLLP (Overtime Cases - Is There a Statute of Limitations on Wage Claims?): http://www.overtimecases.com/faq.html#q14

    Useful Web Sites

    U.S. Department of Labor (elaws - FLSA Overtime Calculator Advisor): http://www.dol.gov/elaws/otcalculator.htm

    Washington State Dept. of Labor and Industries (Understanding Overtime): http://www.lni.wa.gov/workplacerights/wages/overtime/whenapply/default.asp

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    Image Credits by Salary.com

    Questions are prepared from FLSA regulations





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