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Are You Experiencing Common Overtime Violations?
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Is Your Employer Short‑Changing Your Overtime Pay?
Most workers must receive “time‑and‑a‑half” pay for all time worked over 40 hours worked in a seven‑day workweek. Yet many employers still fail to pay proper overtime through tactics that range from sloppy bookkeeping to outright wage theft. This guide explains five commonly seen violations, how they shrink your paycheck, and the concrete steps you can take to protect your hard‑earned wages.
Misclassifying Employees as “Exempt” from Overtime – The Salary Scam
A fancy title like “assistant manager” does not automatically mean you’re salaried and not entitled to overtime pay. To be exempt from legal requirements to pay employees overtime, there are legal criteria covering your pay structure and amount, and primary job duties that must be satisfied. For example, if you spend the bulk of your shift running a register, stocking shelves, or following detailed checklists, your employer is likely required under the law to pay you overtime, even if your badge says “manager.” This is what is considered the “duties test”; a test that determines your exemption status based on whether your job’s primary functions involve executive, administrative, or professional functions.
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Another prong of the three-prong exemption test known as the “salary basis” test, stipulates that one must receive a fixed salary that is not subject to reduction based on quality or quantity of work. So, if the employer has the benefit of paying you a fixed salary if you work 60 hours in one week, it can’t take part of your salary away if you work 35 hours in another. They can’t have the benefit from the burden of a salary situation.
The third prong of the test, known as the “salary level test”, establishes that one’s salary must meet the minimum weekly threshold, which is currently $684 per week as of 2020 but is set to increase in 2025, but the increase was blocked by the courts as of this writing. It’s important to note that these elements of the salary test are based on the federal standard, state laws may have additional rights and protections and may require greater salary levels than this.
Time‑Sheet Tampering and One‑Sided
Your time records are official records the company is required to keep. Employers cannot delete punches, shave minutes for time that you actually worked or round hours only in their favor. Small daily shortcuts, say, ten minutes per shift, can wipe out an entire week of pay over the course of a year.
Day‑Rate and Piece‑Rate Pay Without Overtime
Being paid a flat amount per day, route, or project does not erase your overtime rights. Unless an exemption from overtime applies, the company must track your actual hours and pay an overtime premium after 40 hours in a week. Industries like construction, delivery, and home health care use flat-rate pay the most and break this rule the most.
Leaving Bonuses Out of Overtime Calculations (29 C.F.R. § 778.211)
Performance or attendance bonuses promised in advance must be included when figuring out your overtime rate. If they aren’t, every overtime hour worked in a week you received a premium is underpaid. Check whether your time‑and‑a‑half rate rises when you earn a mandatory bonus; if it stays flat, you may be owed back pay.
Off‑the‑Clock Work
Setting up before you clock in, answering emails at night, or attending meetings during an “unpaid” lunch break all count as work. Industries like construction, delivery, and home health care use flat-rate pay the most and break this rule the most. Keep screenshots, messages, or notes that show off‑the‑clock tasks.
Real‑world example: Restaurant servers were required to roll silverware and clean dining areas after clocking out. A class action forced the chain to pay nearly $12 million in wages and tips.
State Laws That Offer Extra Protection
While the federal Fair Labor Standards Act sets the baseline, many states give workers even stronger overtime rights:
- California– Daily overtime after 8 hours and double time after 12 hours in a day.
- Colorado– Daily overtime after 12 hours or 40 hours per week, plus meal‑period protections.
- New York– Higher minimum‑salary thresholds for exemptions and special rules for hospitality.
- Additionally, New York mandates “spread of hours” pay: Non-exempt employees earning minimum wage must receive an extra hour of pay at the minimum wage rate for any day where:
- Their workday spans more than 10 hours, including unpaid breaks; or
- There are split shifts that cause the total span to exceed 10 hours. If your state has additional protections, your employer must follow it. When in doubt, a wage‑and‑hour lawyer can help you sort out which law applies.
- Additionally, New York mandates “spread of hours” pay: Non-exempt employees earning minimum wage must receive an extra hour of pay at the minimum wage rate for any day where:
Frequently Asked Questions
Can my boss fire me for asking about overtime?
Retaliation is illegal. If your employer demotes, fires, or punishes you for asserting wage rights, you can sue for lost wages and additional damages. 29 U.S.C. § 215(a)(3) makes it unlawful for any employer “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint” under the FLSA.
What documents should I keep to prove my overtime case?
Save any and all documents that may be related to your case that you are lawfully entitled to access which include pay stubs, schedules, screenshots of time clocks, texts or emails that mention hours, and any company policies on timekeeping.
Do I need to file an overtime lawsuit alone?
No. Many overtime cases are filed as collective actions, where coworkers opt in as or class actions whereby motion other workers may become part of the lawsuit if certain criteria such as numerosity, typicality and adequacy are satisfied.
What You Can Do Now to Protect Your Overtime Rights
- Consult an Employment Attorney — Lawyers can calculate damages, file court actions, and inform you of your rights regarding retaliation. Most wage‑and‑hour law firms provide free, confidential consultations including the storied employment law firm of Brown, LLC.
- Document Everything — Keep a personal log of hours worked, save pay stubs, and screenshot time‑clock punches. However, it is recommended to speak with a wage and hour attorney so you can focus on what to document and ensure you are ethically and legally building your overtime case.
Act Quickly: Waiting can cost you money. Evidence fades, memories blur, and the statute of limitations keeps ticking. Brown, LLC has participated in over a billion dollars’ worth of settlements and judgments, but past results don’t guarantee future success. Your wage payment claim consultation is free, confidential, and you pay nothing unless we win your case. Call Brown, LLC at (877) 561‑0000 or fill out our quick online form to learn how we can help.