Category Archives: FLSA

No Waiver of Overtime

I received a call today from an employee whose employer made his sign a written statement “waiving” his right to be paid overtime.  This is illegal.


An employer cannot make an employee agree to not be paid overtime.  If your employer has made you agree to not receive overtime, please call me to investigate.

Payroll Clerk

I am currently investigating an overtime claim on behalf of a payroll clerk. Many times companies treat payroll clerks and the accounting clerks as exempt employees when they pay them a salary to cover all hours worked. Unless the payroll clerk exercises independent discretion in their duties, the designation as an exempt employee is improper.


In order to exercise discretion on the job, an employee must be able to make policies and approve variations to policies. In the case of which I’m currently investigating the payroll clerk had no authority to do anything out of the ordinary. She entered the payroll data from numerous fast food restaurant employees and prepared it for submission to the chief financial officer.



Common Wage and Overtime Violations

Common Overtime ViolationsCommon Wage and Overtime Violations


There are many common overtime violations. Many companies violate federal and state laws protecting the wage and overtime rights of American employees and their families.


Some of the most common wage and overtime violations are discussed below.


Failing to pay employees for all time spent working:


Many companies failed to pay employees for all the time they spent performing work-related activities. Some companies, for example, alter payroll or timekeeping records at the end of the pay period. Other companies fail to pay employees for time spent performing work activities before or after their paid shift, for time spent gathering and donning safety or sanitary gear, for time spent attending pre-shift meetings, and for time spent traveling between his shop and the job site and in traveling between clients.


The above conduct is illegal. Employees are entitled to be paid for all time spent performing work-related activities, even if the activities are “voluntary.”


Failing to pay for “unauthorized” overtime:


Some companies claim that employees are not entitled to overtime pay unless it is “authorized” by manager. These companies then refused to pay overtime, even though the manager knows the overtime work was performed. This is illegal.


Applying rounding rules that shortchange employees:


Some companies who use a time clock or other employee punch-in or sign-in system constantly round employee start and end times down to the nearest half or quarter hour. Such rounding practices often a real legal.


Misclassifying salaried employees as exempt “managers,” “supervisors,” “administrators,” or “professionals”:


Some companies pay employees a salary (instead of an hourly wage) and then tell employee that she is not entitled to overtime because she has an “exempt” job title. This often is illegal.


In fact, many salaried employees are entitled to overtime pay. Whether a salaried employees entitled to overtime depends on his/her actual job duties, not on the job title provided by the Company.


Misclassifying employees as exempt motor carriers:


Some companies contend that employees who drive vehicles as part of their job duties are not entitled to overtime pay under the “motor carrier” exemption to federal and state overtime laws. However, employees who drive small vehicles such as automobiles, vans, or pickup trucks generally are entitled to overtime pay. In addition, drivers who transport passengers exclusively within state lines are entitled to overtime pay.


Allowing work during meal breaks:


Some companies allow employees to perform work during meal breaks or require employees to be on duty during the meal break. This can be illegal, even if the work is “voluntary.” In addition, employees required to be “on-call” throughout their meal breaks generally entitled to be paid.


Independent contractors:


Some companies refused to pay employees overtime by calling them “independent contractors” instead of “employees.” But whether an employee truly is an independent contractor depends on the actual circumstances of his employment. An employee is not an independent contractor just because the company says so.


Failing to include commissions, shift differential pay and other monetary payments in the overtime calculations:


Employees who work over 40 hours generally are entitled to overtime pay equaling 1 ½ times their regular pay rate. Many employees, however, receive commissions and shift differential payments in addition to their hourly pay. In calculating the time and one half overtime premium, most commissions and shift differential payments must be included in the employee’s regular pay rate, and the employee’s overtime premium must be calculated based on this enhanced regular pay rate.


Averaging long and short workweeks:


Employees generally are entitled to “time and one half” overtime pay for all hours worked over 40 in a single work week, which is defined as a period of 7 consecutive days. Companies generally cannot avoid paying overtime by averaging a “long” workweek with a “short” workweek. For example, if the employee works 40 hours in one workweek and only 32 hours and annexed work week, she usually is entitled 8 hours of overtime pay for the first workweek. It does not matter that the first 48-hour week and the 2nd 30-hour week “average out” to two 40 hour weeks.


Compensatory time:


Most hourly employees not employed by the government are entitled to a monetary payment for overtime work. This overtime pay must be calculated at 150% of the employee’s regular rate of pay. It generally is illegal for private sector employers to pay nonmonetary “compensatory time” (or “comp time”) benefits instead of money.



Working Overtime

Working OvertimeIf you are working overtime and not getting paid 1 1/2 time for all hours over 40 you should consult an overtime lawyer to determine how you can get paid.

All employees are entitled to overtime unless an exemption applies.  The exemptions are sometimes complicated and an overtime attorney can help advise you.

If you work overtime it does not matter that you are paid a salary.  It is not how you are paid that counts.  It is the job you do and your duties and responsibilities that count.

Working Overtime

The job you perform determines if you are entitled to overtime pay.  Complete the for for a Free consultation.

The exemptions provided by FLSA Section 13(a)(1) do not apply to manual laborers or other “blue-collar” workers who perform work involving repetitive operations with their hands, physical skill and energy.  Such nonexempt “blue-collar” employees gain the skills and knowledge required for performance of their routine manual and physical work through apprenticeships and on-the-job training.

FLSA-covered, non-management employees in production, maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers are entitled to minimum wage and overtime premium pay under the FLSA, and are not exempt under Section 13(a)(1) of the FLSA nor the regulations at 29 CFR Part 541, no matter how highly paid they might be.

The workweek ordinarily includes all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed work place. “Workday”, in general, means the period between the time on any particular day when such employee commences his/her “principal activity” and the time on that day at which he/she ceases such principal activity or activities. The workday may therefore be longer than the employee’s scheduled shift, hours, tour of duty, or production line time.


Oil Field Overtime Lawsuit

Oil Field Overtime LawsuitI am writing this post to give an example of the type of allegations made in an oil field overtime lawsuit.  Here is language from a lawsuit regarding top-drive technicians in an oil field overtime lawsuit.

Oil Field Overtime Lawsuit

  • Defendant has approximately 330 marketable land-based drilling rigs that operate primarily in oil and natural gas producing regions of Texas, New Mexico, Oklahoma, Arkansas, Louisiana, Mississippi, Colorado, Utah, Wyoming, Montana, North Dakota, Pennsylvania, West Virginia, Ohio and Western Canada.
  • Plaintiff worked for Defendant at its Springtown, Texas location as a top drive maintenance technician from approximately July, 2011 to November 2, 2012.
  • During the time period, Plaintiff’s’ job responsibilities consisted of addressing, as directed by Defendant, the maintenance of the top drive motors on the drilling rigs at Defendant’s work locations and drilling rigs in or near Springtown, Texas.
  • Plaintiff’s primary job duties consisted of manual labor tasks in the form of repair, maintenance and other non-office, manual labor work.  Plaintiff was also responsible for various other non-discretionary tasks.  These other non-discretionary tasks Plaintiff performs are routine and do not require the exercise of independent judgment or discretion.
  • At all times during his employment, Plaintiff was treated as an exempt employee for purposes of the FLSA, was paid a salary for his work, and was not paid time and one-half his regular rate of pay for hours worked in excess of 40 hours in a work week.
  • Defendant knowingly, willfully, or with reckless disregard carried out its illegal pattern or practice of failing to pay overtime compensation with respect to Plaintiff.
  • The FLSA requires employers to keep accurate time records of hours worked by nonexempt employees.  29 U.S.C. § 211 (c).
  • In addition to the pay violations of the FLSA identified above, Defendant also failed to keep proper time records as required by the FLSA.
  • Plaintiff has retained the Law Office of Chris R. Miltenberger, PLLC to represent him in this litigation and has agreed to pay a reasonable fee of its services.

This is the type language included in oil field overtime lawsuit.

Overtime for Salaried Workers

Overtime for Salaried WorkersOvertime for salaried workers may now be required. Today, in a historic move, the U.S. Labor Department issued updated overtime rules that will change life an estimated 12.5 million salaried workers who will now qualify for overtime pay.


The new rules will raise the salary threshold that employers must meet before they can deny overtime pay to certain workers—from $23,660 to $47,476. The old threshold was so low that even some workers living below the poverty line did not qualify for overtime.


Now, all salaried workers earning less than $47,476 per year will be entitled to overtime pay for working more than 40 hours a week, regardless of their job title.


While the rule raises the applicable thresholds for various exemptions, it also allows employers to count earnings paid to employees as bonuses and commissions toward meeting the salary threshold.  Specifically, the rule permits employers to meet up to ten (10%) of the salary threshold with amounts paid to employees as bonus and commission payments.


This means that employers can no longer use a loophole in the law—the pretense of managerial or other specialized duties—to deny these workers overtime pay or require them to donate their labor, free of charge, in extra hours of unpaid work. In short: the new overtime rule means a higher income or more time for family and friends—a better life overall—for millions of workers.


The loopholes many companies attempt to use to not pay overtime for salaried workers are the exemptions to the FLSA.  The “executive,” “administrative,” and “professional” exemptions are the ones on which most companies rely. This will no longer be allowed unless the higher salary threshold is met.


If you do not meet the higher salary threshold and the company is relying on one of these exemptions, you should be entitled to overtime and may have a cause of action for unpaid overtime against your employer. Effective December 1, 2016 companies will no longer be allowed to not pay overtime unless the higher threshold is met.


Contact me if you are not being paid the proper overtime. I will discuss your situation with you and make a determination if I believe you are entitled to overtime pay.

Overtime Lawyer – Get Help Now

Overtime LawyerWhen you need an overtime lawyer you should select someone with experienced in the type of case you have.  Some overtime lawyers have more experience than other overtime lawyers in a given type of case.

In my pending and resolved cases section I list some of the types of cases I have handled.  Read those excerpts and see if I have handled a case similar to your case.

For a free consultation, contact me if you have any questions.




Independent Contractors v Employees



Whether companies treat their workers as employees or independent contractors has profound implications for workers’ pay and benefits, for employers, and for public revenues. High-profile worker lawsuits against Uber and other on-demand giants seeking fair pay or workers’ compensation have recently thrust the business practice of misclassification into the national spotlight again. But for decades, many companies in transportation, janitorial, logistics, home care and domestic work, construction, tech, and other sectors have imposed take-it-or-leave-it non-employee contracts on their workers, putting them outside of the workplace protections and tax requirements that apply only to employees and employers. Under the law, however, these arrangements are permissible only when the worker is running a separate business.

In most instances, an individual performing labor or services for another should be covered as an employee under our employment laws, unless the person operates an independent business, with specialized skill, capital investment, and the ability to engage in arms-length negotiations over the terms of a job. In key industries in our economy, however, independent contractor misclassification is prevalent and has become standard operating practice for companies looking to save on payroll costs, outbid competitors, or avoid workplace regulations.

Here are some high-profile examples:

  • FedEx requires its ground-delivery drivers to sign independent contractor agreements, which have been found to be shams in several large cases around the country;
  • Uber drivers are claiming employee status in many suits and agency claims;
  • Amazon’s “last mile” delivery drivers were treated as independent contractors but claim they should be employees;
  • Honor, a Hollywood-backed home care agency, recently switched its workers’ status from independent contractor to employee;
  • A 2013 study by the Workers Defense Project and the University of Texas found that more than 40 percent of construction workers in Texas are either classified as independent contractors or paid under the table]

Unchecked, independent contractor misclassification can cause long-term damage to the economy and workers, but there are solutions. State reforms already have helped curb abuses, recouping millions of dollars, while the federal government has taken a strong stand against the practice, evident in its multi-agency task force and the U.S. Department of Labor’s July 2015 guidance clarifying that most workers are covered employees.

Wage and Hour Laws

What Are Wage and Hour Laws?

Wage and hour laws govern the basic standards for minimum wages and overtime pay in the workplace. The main wage and hour law is the Fair Labor Standards Act (FLSA). Among other things, the Act covers these main issues:

Employers are required to abide by the rules set out in the Fair Labor Standards Act. Besides following FLSA standards, employers need to keep accurate records about the following:

  • Wages
  • Hours
  • Other details related to their business

Failing to do so can result in legal consequences, and may result in wage and hour lawsuits filed by employees.

What Are Some Common Lawsuits Involving Wage and Hour Claims?

Wage and hour claims are the most common type of employment lawsuits. Disability and discrimination claims are also common in labor disputes. Wage and hour issues typically involve an employer failing to pay employees minimum wage or overtime.

In less common cases, an employee may abuse work procedures and claim FLSA benefits that they aren’t entitled to. In general, most wage and hour law claims involve complaints against employers.

Common issues involved in wage and hour lawsuits include:

  • Exemptions: Certain categories of employees are exempt from overtime pay laws. This means that they are not entitled to overtime pay. Some employers make the mistake of classifying some or all their employees as exempt, when they really aren’t. Others wrongly classify employees to avoid paying them more, which is illegal.
  • Job Title vs. Actual Duties Performed: Most FLSA provisions are based on the actual duties that the employee performs, rather than their job descriptions. This means that the exemptions are based on duties performed and not job titles. A common mistake for employers is to base the employee’s FLSA status on their job title rather than their duties.
  • Working “Off the Clock”: FLSA violations can arise because not all companies operate according to a strict, 40-hour work week. Many businesses and employees are under “alternative weeks” (4 day work weeks or 10 hour days, etc.). Some employers don’t include business meetings as part of the “work day”. Finally, a great number of wage and hour claims involve the withholding of wages. These claims involve an employer wrongfully withholding an employee’s payments. The reason for withholding wages must be illegal, such as discrimination, or in retaliation.

What If I Need to File a Wage and Hour Claim?

If you have a wage and hour dispute, you’ll probably need to file a claim with the Wage-Hour Division of the U.S. Department of Labor first. The Wage-Hour division will conduct an investigation to determine if there are FLSA violations. If a violation is found, they may enforce penalties against the employer. Penalties may demand that employers adjust their labor policies.

If the Department of Labor is unable to provide you with the appropriate remedy, you may also file a private civil lawsuit against your employer. You may be entitled to receive a damages award for losses such as back pay. Employers are prohibited, by law, from firing an employee who makes a report about wage and hour disputes in the workplace.

Remedies in Wage and Hour Claims

What Are Wage and Hour Claims?

Wage and hour claims, or wage/hour disputes, are conflicts that are specific to an employment setting. They involve disputes over how much wages an employee is paid, or how many hours they are working. In many cases, they involve very specific issues such as:

  • Overall pay rates or salary rates
  • Violations of state or federal minimum wage rates
  • Overtime wages
  • Issues regarding the amount of hours the person is required or allowed to work
  • Disputes over employment contract terms

For instance, a common scenario is where an employer fails to pay a worker overtime wages when they are entitled to such pay. These types of disputes often result in some very specific legal remedies.

What Are Some Common Remedies in Wage and Hour Claims?

Most wage and hour claims result in a damages award that is issued from the employer to the worker. These are often sufficient to provide relief for losses caused to the employee. Generally, these damage awards cover the unpaid wages, plus other losses that may be related to the claim (such as lost profits on a deal, etc.).

In addition, other remedies may include:

  • Requirements that the employer change their payment and hour requirements (so that they conform with state/federal laws)
  • Investigations into the company’s overall record-keeping practices
  • Firing of a supervisor or manager
  • Reinstatement of the worker back to their previous position (if they were also terminated in connection with a dispute)

How Are Wage and Hour Disputes Proven?

Wage/hour disputes often require analysis of many different documents and statements. These can include:

  • Pay stubs
  • Work logs (input of clocking in/out, etc.)
  • Tax papers
  • Receipts and other documents

In addition, witness testimony may also be required (for instance, statements from co-workers regarding their own pay situation).