Overtime Inequality: Is it the Same as Unfair Pay - Aiman-Smith & Marcy
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Overtime Inequality: Is it the Same as Unfair Pay

A full-time work week is 40 hours, typically stretched over four to six days a week. Any hours worked past 40 are clocked as ‘overtime’ and those hours pay half-again more than normal rate hours, also known as “time-and-a-half” pay. While working those extra hours can be tiring, it may also be worth the money to you. Many teams actually seek opportunities to take overtime as a way to make a little more each pay period. But what happens when overtime is only ‘granted’ to a few people on the team? This little financial move is known as overtime inequality.

What is Overtime Inequality?

Answer: Unfair assigning of overtime hours and opportunities.

When overtime is a privilege given to good workers so they can earn more, unfair granting of overtime becomes inequality. Maybe the boss’ favorite gets more overtime hours than anyone else on the team, or perhaps there’s a systemic favoritism of men or senior staff or only those hired before last September. Overtime inequality is also one of the more subtle signs that can spotlight systemic illegal workplace biases against employees of certain races, gender, cultural background, or life circumstances.

If you are being denied the opportunity to take overtime when others of similar qualifications are getting hours, there may be a case of overtime inequality.

Of course, when overtime is a punishment forcing employees to work the most difficult tasks and hours despite the higher pay, overtime inequality can be used with similar bias in the other direction.


Is Overtime Inequality the Same as Unfair Pay?

Answer: It can be. Yes, if you worked the hours.

Employers are legally required to pay each staff member the full wages and overtime for the hours they have worked. Being paid unfairly involves not being paid according to the terms of your employment contract and the actual conditions of your role. It is an issue first to take up with HR and payroll (if it is a mistake) and then to your lawyer if your employer refuses to correct under-paying (or even over-paying) you for hours worked.

But is denial of overtime opportunities the same as unfair pay? It depends on whether you worked the hours. If you worked overtime hours and you are being denied overtime pay, this is payroll fraud and you may need to take direct legal action. Employers often argue that they have already ‘used up’ all the overtime they could hand out so your hours just don’t count. They may be over-budget, but your time is still legally fungible.

However, if you are being denied opportunities to take overtime, there is no payroll fraud. But it might be a case of workplace discrimination.


Is Your Overtime Inequality Workplace Discrimination?

Answer: It can be. Yes if there is a pattern of denial against protected groups.

Systemic denial of overtime opportunity can be a case of discriminatory bias, but you’ll need to prove a pattern of bias to make a strong case. Officially, employers are allowed to grant hours to whoever they want, as long as they are not systematically disadvantageous to a protected group.

This means some patterns of bias are legal. For example, your employer could say only the admin staff can take overtime. Or only a person wearing a green shirt on overtime day. They can reserve overtime for senior team members and only offer overtime to people who work the overtime-associated shifts. What they can’t do is assign or deny overtime based on gender, race, religion, culture, disability, or family circumstances.

Investigate who is granted overtime and the official reasons for the decisions. Then look into who is denied overtime and if any reasons are given. If the reasons seem false, look deeper to find a pattern. Are all the people denied overtime female, married, or of a certain cultural background? If so, you may be facing an issue of overtime workplace discrimination.


What to Do if There is Overtime Discrimination in Your Workplace?

Answer: Report it to HR or consult a lawyer, depending on how safe you feel at work.

If you have found clear evidence or have an uncomfortable suspicion that your employer is using discrimination to assign overtime, seek legal counsel. If it’s one manager, you might be able to safely reach out to HR. If you don’t feel comfortable, talk to an employment lawyer first to explore your options and protections as you move forward. Blowing the whistle on discriminatory practices in the workplace not only improves your own situation, you can save countless other employees from the same unfair treatment. If an employer is willing to deny people overtime opportunities based on bias, what other opportunities are they denying to dis-favored employees?

Let us help you defend your right to fair overtime and work opportunities. Here at Aiman-Smith and Marcy, we are an employment law team dedicated to defending workers from companies who think they are above both the law and common decency. You don’t have to put up with denied opportunities and/or unfair pay. The Aiman-Smith and Marcy team will stand beside you to hold your employer accountable for unlawful workplace bias and employee abuse.