Welcome back to the second half of our two-part article. Last time, we talked about how employers commonly deny overtime through one of many methods in order to save money, take advantage of employees, and sometimes from simple incompetence. Join us again today as we pick up where we left off.
Your Employer Has Altered Your Role to No Longer Qualify as Exempt
Keep the requirements for exemption in mind as we move forward. Because along the same lines is being denied overtime in a role that has altered from exempt to non-exempt. Which is something that happens surprisingly often, and is referred to as failing the ‘test of duties‘ to qualify for exemption.
Let’s say you originally accepted a position that pays over twice minimum wage and where you had a lot of autonomy. But at some point, your boss decides to dock your pay (not allowed for exempt employees) or starts to micro-manage your time.
Suddenly, an exempt position with autonomy and financial stability has been reduced in wages or your autonomy removed. And magically, you are no longer exempt. Not only does your employer now owe you overtime for any 40+ hours worked from this point on. They may also owe you overtime back pay for any extra hours you worked since the role changed or even before that.
Your Employer Is Claiming You Are an Independent Contractor Who Doesn’t Get Overtime
Another form of misclassification is to claim that you are an independent contractor instead of a genuine employee. But this, too, has a legal definition that must be met. An independent contractor is free to work with other clients. They are free to set their own schedule and to work independently. A contractor may be able to choose whether they come into the office or work from home. And — we might add — has a contract with binding agreements on both sides for employer and contractor responsibilities.
If you don’t have a contract, you’re not a contractor. If your employer makes you clock in, if they micromanage your work, and if they get to decide when you work extra hours, you’re not a contractor. You’re an employee and therefore are legally required to be paid as an employee. But this kind of misclassification almost always requires legal intervention to fix because your employer has willfully filed the wrong paperwork and is using the wrong legal terms to define your employment. Even if they are treating you like a wage-slave employee.
Your Employer is Trying to Give You Comp Time Instead of Overtime
Finally, there are employers who know where they stand. They know you are an hourly employee and aren’t pretending otherwise. They know they owe you compensation for extra hours worked, but they still don’t want to pay overtime. A common mistake employers make is to think they can offer comp-time instead. What this means is that your employer offers you time off instead of overtime pay.
While there are some situations where comp-time is legal, like if you work a holiday you didn’t want to and your employer offers you an extra paid vacation day at another time. But comp-time for overtime is always illegal unless your employer is offering that vacation day, at time and a half. All overtime is paid at time and a half, no matter how your employer chooses to pay it. And if they’re trying to cheat you out of that ‘And-a-half’ with promises of vacation time, this is a legal violation that you can fight in the courts.
Has your employer been denying your rightful overtime pay and the overtime pay of your coworkers? If this is more than an accident you can fix with a quiet word to HR, then it’s time for some legal intervention.
Here at Aiman-Smith & Marcy, we are dedicated to standing up for employees in the face of mistreatment by employers. Whether that mistreatment is criminal incompetence or intentional worker exploitation. With the help of our experienced workplace law team, you can force your employer to face their illegal pay denial and make it right with each person who has worked uncompensated overtime. For more information about overtime pay law or a consultation on your unique workplace situation, contact us today!