Overtime and Wage & Hour Cases
Experienced Atlanta Overtime Attorneys: Call Us at (404) 471-3725
One of the oldest federal employment laws is the
Fair Labor Standards Act (FLSA), the Depression-era law that sets forth certain minimum wage and
overtime standards applicable to virtually all U.S. employers. Although
the FLSA covers a number of different areas, including child labor laws,
there are two key provisions of the FLSA that impact just about every
employee who works for a wage in this country: (1) the minimum wage provision
(the federal minimum wage is currently $7.25 per hour, although in a few
states, unfortunately not Georgia, the minimum wage is higher); and (2)
the overtime provision.
To learn how we can help, call us and
talk to an attorney today.
Are You Owed Overtime Wages?
The overtime law states that all employees who are not exempt from the
FLSA must be paid at a rate of one and one half times their regular rate
of pay for all hours worked in excess of 40 hours in any workweek. Although
this sounds like a simple rule, it's far from simple.
In fact, the overtime laws are incredibly complex, and there are a number
of arcane rules and broad exemptions that employers often rely on in an
attempt to avoid their obligation to pay overtime. As a result, unpaid
overtime is one of the most frequent sources of employee complaints, and
overtime class action cases are probably the fastest growing type of employment
litigation in our federal court system.
Exemptions Under Overtime Laws
The most important issue in overtime law is whether or not the law applies
to the type of work you do—whether or not you are exempt. Exemptions
are rules that state that if you make more than a certain amount of money
per week, and if you perform a certain type of "white collar"
work, then you are exempt from the overtime laws, and your employer need
not pay you time and a half no matter how many hours you work in a week.
If, however, the exemptions do not apply to you, then you are considered
non-exempt, and your employer must pay you time and a half for every hour
you work more than 40 in any workweek.
There are three principal exemptions under the FLSA:
In order for your employer to establish that your work falls under one
of these exemptions, thereby disqualifying you from overtime, your employer
must prove that you are paid on a salary basis in an amount not less than
$455 per week and that your principal duties are executive, administrative,
or professional in nature.
What is the salary basis test?
The salary basis test means that you must be paid a real salary to be exempt—that
typically means that you receive a fixed and predetermined sum of money
each pay period that does not vary with the amount of hours you work,
or the quality of your work. If your compensation varies with the amount
of hours you work (in other words, you punch a time card or fill in time
sheets), then you are a non-exempt hourly employee and entitled to overtime.
Even if you are paid on what appears to be a salary basis, but your employer
docks your pay for short term absences or problems with your work, then
you are not paid on a salary basis and you are probably non-exempt and
eligible for overtime.
It's critical to remember in these cases is that the title or label
of your job does not matter; it is the nature of your work that determines
whether or not you are exempt. Don't be fooled by some companies'
practice of giving hourly employees titles that sound like they are exempt,
such as assistant manager. If you don't perform true managerial functions,
then no matter what your job title says, you will still be entitled to overtime.
As mentioned above, if you perform typical white-collar duties, then you
may be an exempt employee. There are three principle white-collar exemptions:
(1) executive; (2) administrative; and (3) professional. There are also
a number of miscellaneous exemptions.
The exemptions are explained below:
Executive Exemption: In order for your employer to prove that your duties are primarily executive
in nature, your employer must demonstrate three separate facts:
- (1) that your primary duty consists of either managing your employer's
business, or a specific department of the business;
- (2) that you customarily and regularly direct the work of at least two
full-time employees: and
- (3) you must have the authority to hire or fire other employees, or have
significant input into hiring, firing, and other important employment
Typically, the jobs that that qualify for this exemption are executive
level positions, high-level managers, and other individuals who manage
and control some important aspect of the company's business.
Administrative Exemption: In order for your employer to prove that your duties are primarily administrative
in nature, your employer must demonstrate two separate facts:
- (1) your primary duty must be the performance of office or non-manual work
directly related to the management or general business operations of your
- (2) your primary duty involves the exercise of discretion and independent
judgment with respect to important company business.
Professional Exemption: In order for your employer to prove that your duties are primarily professional
in nature, your employer must demonstrate all of the following:
- (1) your primary duty must involve work that requires advanced knowledge,
such as work which is predominantly intellectual in character and which
includes work requiring the consistent exercise of discretion and judgment;
- (2) the advanced knowledge must be in a field of science or learning; and
- (3) the advanced knowledge must be customarily acquired by a prolonged
course of specialized intellectual instruction—in other words an
advanced degree. There is also a related creative professional exemption.
This exemption applies if your primary duty involves artistic or creative work.
In addition to these three exemptions, the two other common exemptions
are for outside salespeople and certain computer employees:
Computer Employee Exemption: To be subject to the computer employee exemption, you must be paid on salary
basis of not less than $455 per week; you must be employed as a computer
systems analyst, programmer, software engineer or skilled worker in the
computer field; and your primary duties must consist of software, hardware
or system consulting, design, development, documentation, analysis, creation,
testing or modification or a combination of these skills.
Outside Sales Exemption: To be subject to the outside sales employee exemption, your primary duty
must be making sales or obtaining orders or contracts, and you must be
customarily and regularly engaged away from your workplace.
Rights and Remedies
The FLSA is one of the most employee-friendly of the federal labor laws,
and it sets minimum standards applicable to all covered employees that
cannot be reduced or waived. In other words, if you are non-exempt, then
your employer must pay you overtime, and it cannot ask you to take a lesser
amount or get you to waive your rights to overtime in any way. However,
state laws and collective bargaining agreements can impose greater duties
on employers than the FLSA, and in a few states the minimum wage is higher
than the federal minimum.
If you believe that you have been denied overtime or that your employer
has committed some other violation of the wage and hour laws, you don't
have to file an EEOC claim as you would in a typical discrimination case.
Instead, you can hire a private attorney and file suit as soon as you
discover the violation.
If other people at your company have also been denied overtime, you may
be able to file a special type of FLSA class action, known as a collective
action, which will help you bring the maximum pressure to bear on your
employer to change its ways and to pay you all the compensation you are owed.
Also unlike the discrimination laws, the FLSA has a much longer statute
of limitations—you have two years to file suit for most violations
and three years if your employer's violation of the law is willful.
You damages can include all back wages (which includes any unpaid overtime),
plus an amount equal to your unpaid back wages, interest, attorneys'
fees, and court costs.
Fight for Your Unpaid Wages: Call Our Team at (404) 471-3725 for Help.
The FLSA is an extremely complex statute; there are hundreds of pages of
rules and regulations covering the exemptions and other aspects of the
law. But our Atlanta wage and hour lawyers at Buckley Beal have read these
hundreds of pages, and we are very experienced in handling wage and hour
cases. We've handled both individual overtime cases and huge collective
actions, recovering millions of dollars in unpaid overtime for our clients.
If you work the hours, you're entitled to the pay—contact us
to get all the pay you deserve.
If you have any reason to believe that you or anyone else at your company
have been denied overtime,
call us anytime at (404) 471-3725.