Chicago Overtime Attorney
The Fair Labor Standards Act (FLSA) requires that non-exempt employees receive overtime pay equal to 1.5 x their regular rate, for any hours worked over 40-hours in a workweek. This typically happens when employees work more than eight hours a day, or more than five days a week. An employer may require employees to work overtime hours, but the employer must give the employee overtime pay.
There are, however, many employers that try to avoid paying overtime by paying their employees a salary (a fixed sum of money each week), regardless of whether the employee works more than 40-hours a week. In such cases, an employee is still entitled to overtime pay if they are a nonexempt employee.
Any overtime pay that has not been paid can be collected for up to two years from the date that the pay was earned, and up to three years if the employer willfully violated the law. Often, the employer’s failure to pay overtime may require it to pay an additional amount of money, equal to the amount owed. This is known as liquidated damages.
In order to be covered by the FLSA, an employer’s gross receivables must exceed $500,000 per year, however, the $500,000 is the amount of money coming in, not the amount of profits the company has received. For example, a small independent dry cleaner may make $700,000 in a year and be covered, even though its expenses are $400,000, making their profit only $300,000. There have been some cases that have indicated that the $500,000 limit is an approximation, and a company that makes a little less than the required amount may still be covered. Unlike discrimination laws or the Family and Medical Leave Act, the number of employees makes no difference in determining overtime laws.
Exempt v. Non-Exempt Employees
Unlike the Family and Medical Leave Act, it makes no difference how long an employee has worked for an employer. As a result, an employee is entitled to overtime pay in any week in which they work more than 40 hours. Unfortunately, not all employees are covered by the overtime law. The law differentiates between “exempt” employees, or employees that are not covered by the law, and “non-exempt” employees, who are covered by the law.
Any employee who is paid by the hour and does not receive a salaried pay, is automatically considered non-exempt and is therefore entitled to overtime pay when working more than 40-hours in a week. Even in cases in which the employer calls you an “independent contractor” but pays you by the hour and generally controls the method, manner and way you perform your job the “independent contractor” is an employee and should be paid overtime.
Generally, high paying executives, professionals, or managerial jobs are exempt from overtime pay and are not eligible. It is important to remember, however, that simply because your job title has the word “manager” in it, it does not mean that you are exempt, but is based on your specific job duties.
There are other very specific exemptions, which include the following: computer analysts, and certain salespeople. Servers in restaurants typically also fall under special rules because of the tips you receive. Recent changes in the Federal laws have created more exceptions, but individual states have their own laws. While this page discusses Federal overtime law, which is applicable in all states, please visit our state specific pages for a discussion of state overtime pay and overtime laws in these specific states: Illinois, Indiana, Iowa, Michigan, Pennsylvania, Wisconsin.
Employer Tricks and Traps
Employers will often make mistakes when deciding which employees are exempt and which are not. Often times, employers will try to trick employees into thinking that they are exempt and not entitled to overtime pay. It is important to remember that you may still be entitled to overtime pay even if: 1) you are on a salary; 2) you have the word manager in your title; 3) your employer says you are an independent contractor (you might not be); or 4) your employer simply tells you that you are exempt.
Another common trap used by employers is to pay their employees their hourly rate, instead of 1.5 times their regular pay for any hours over 40 in one week. So if you make $10 per hour and worked 50-hours week, the employer will only pay you $500 ($10 x 50 hours). In that case, you are owed an additional $50 because the last 10 hours were overtime and should have been $15, not $10 per hour. These calculations can be tricky so be sure to review them with an employment or labor attorney.
It is illegal for an employer to retaliate against an employee for asking for his or her earned overtime pay, as well as for contacting an attorney or filing a claim for an overtime violation. In the event that you are fired for complaining of not receiving your overtime pay, you may have a claim for retaliation. Since this is a separate violation of the law, you should consult an employment attorney as soon as possible.
If you have not been paid your earned overtime, or you feel that you have only been paid your regular wage for any overtime hours worked, then you may be entitled to more money. Overtime and wage laws are very complex, but the experienced Chicago overtime attorneys at Maduff, & Maduff understand them and are dedicated to helping you. Give us a call.