How much will it cost to pursue my claim for unpaid wages?

I can’t really afford a lawyer. It will cost nothing. Shorstein & Lasnetski, LLC represents claimants with wage and hour/overtime claims in Jacksonville and throughout north and central Florida on a contingency basis which means that we only get paid if and when we are successful with your claim. In that case, the laws provide that your employer, not you, pays our fees and costs.

What is overtime pay?

Overtime pay is compensation for working more than 40 hours in a week. Overtime pay is normally calculated by multiplying 1.5 by your normal hourly rate. If you are paid by salary, commission or by project, we can still figure out your regular rate of pay and determine what your overtime rate of pay should be. Additionally, your regular rate of pay may also include other work-related payments such as increased pay for working different shifts, bonuses, longevity pay, incentive pay and other non-discretionary payments.

Who is entitled to overtime pay?

Most employees are entitled to overtime pay, even those who have been told they are not entitled to overtime pay or make that assumption on their own. There are certain jobs that are not eligible for overtime pay but they are the exception, not the rule. More importantly, whether you are entitled to overtime pay does not depend on your job title, how you are paid or what your boss has told you.

If I have a valid, successful claim for unpaid wages, what would I get?

You are entitled to the unpaid wages you are owed plus interest plus a “liquidated damage” amount. This amount is equal to the amount of the wages you are owed. For instance, if you are owed $3,500 in unpaid wages and are successful, you are entitled to that $3,500 plus an additional $3,500 as a penalty from your employer for a total of $7,000. Additionally, your employer is required to pay your legal fees and costs.

Can you give me an example of a overtime pay calculation?

Yes. Let’s assume you make $10/hour and you worked 60 hours in a week. If you are entitled to overtime pay, as most employees are, you should be paid $10/hour for the first 40 hours, or $400. However, the next 20 hours are overtime hours, and you should be paid time and a half for those 20 hours, or 1.5 x $10 = $15. So your overtime rate is $15/overtime hour. For the 20 overtime hours, your pay should be 20 x $15 = $300. Your total pay for the 60 hours should be $400 + $300 = $700. Oftentimes, your employer will only pay you $10/hour for the whole 60 hours, or $600. In that case, your boss owes you $100.

How does overtime pay work if I am on salary?

Let’s assume you make $1000 per week, or $500 every two weeks, for a 40 hour week. You would convert that to an hourly rate by dividing your pay by your hours, or 500/40 to get a regular hourly rate of $12.50 per hour. Your overtime rate is 1.5 times your regular rate or 1.5 x 12.50 = $18.75. With some exceptions, if you work more than 40 hours a week, you should be paid $18.75/hour for each hour over 40.

I do not have very good, detailed records of the number of hours I worked and what I was paid. Do I still have a case for unpaid wages?

Yes. It is your employer’s responsibility and burden to maintain thorough and accurate records of the hours you worked and your pay. It is their job to disprove your wage/overtime claim. It is not your responsibility. If your employer did not keep those records, that can work in your favor in presenting your case, and your reasonable recollection of the hours you worked and what you were paid will be good enough. Of course, if you do have god records of your hours and pay, those will be helpful and should be provided to your lawyer.

I can’t figure out how much is owed to me for unpaid wages/overtime? What can I do?

That’s fine. We can work with you to determine your eligibility for overtime wages and to calculate the amount that is owed to you after we obtain some basic information from you.

How much time do I have to bring a claim for unpaid overtime wages or minimum wage?

The law (the Fair Labor Standards Act, or FLSA) provides that you can recover unpaid wages owed to you going back two years (three years if the employer’s conduct was deliberate or reckless). This is a running two years, so to speak, so the two years is measured from whenever you bring your claim. For example, if you brought your claim on January 1, 2007, you could collect unpaid wages from January 1, 2005 through January 1, 2007. If you brought your claim on January 1, 2008, you could recover unpaid wages from January 1, 2006 through January 1, 2008.

Can I bring a claim for unpaid wages against a former employer or just a current employer?

Either, or both, as long as the claim is for unpaid wages within the previous two years (three if the employer’s conduct was deliberate or reckless).

My boss considers me a “manager.” Because he calls me a manager, he says I am not eligible for overtime pay. Is this right?

No. Your job title does not determine whether you are entitled to overtime pay for hours you have worked in excess of 40 hours in a week. What does matter is your actual job duties. Managers and executives paid by salary may not be eligible for overtime pay if more than half of their duties are managerial and the employee regularly directs the work of two or more employees. If you are considered a manager or executive but think you have not been paid fairly for overtime, I would suggest contacting a lawyer to discuss your situation.

I am a professional in the computer industry. Am I entitled to overtime pay?

It is likely that you are. It depends on your job duties, not your job title. There is an exemption for highly skilled computer professionals, but it is limited to computer programmers, computer system analysts and engineers who have a high degree of knowledge and work without close supervision. If your job consists of maintenance, operation and/or repair of computers, you are likely entitled to overtime pay. Also, if you are paid hourly at less than $27.63 per hour, you are entitled to overtime pay.

I am in sales. Am I eligible for overtime pay?

Most likely. There is an exception to overtime pay eligibility for outside sales employees, in other words, those employees who normally work away from the employer’s place of business making sales and spend 80% or more of their time during the work week on outside sales work. If you are in outside sales but spend more than 20% of your time doing work that is not outside sales-related, you may likely be eligible for overtime pay.

My employer said I am exempt from overtime pay eligibility. I never argued with him or her and worked overtime without getting paid time and a half (1.5 times the normal rate of pay). What can I do?

It does not matter what your boss told you about your eligibility to receive, or exemption from receiving, overtime pay. What matters is your job duties. If you are considered a manager or executive but think you have not been paid fairly for overtime, I would suggest contacting a lawyer to discuss your situation.

I make my money mostly from tips. Am I entitled to overtime pay for hours I worked over 40 hours in a week?

Yes. Employees like waiters/waitresses, servers, deliverymen and women and others are entitled to overtime pay for hours worked in excess of 40 hours in a week.

I worked more than 40 hours some weeks, but my employer just gave me comp time instead of overtime pay. Is this right?

No. An employer may not substitute comp time or any similar form of compensation for overtime pay when an employee works more than 40 hours in a week.

Some weeks I worked more than 40 hours, but the next week or two, I would work less than 40 hours so it evened out. Am I entitled to overtime for the weeks I worked more than 40 hours?

Yes. Even if you agreed to do this, your boss is not permitted to “even out’ your hours by working you more than 40 hours some weeks and less other weeks. For instance, if you worked 50 hours one week and 30 hours the next, you are entitled to overtime pay for the 10 extra hours you worked the prior week.

My boss says my salary already compensates me for the overtime hours I have to work at times. Is this appropriate?

No. Unless exempted, you are entitled to be paid time and a half (1.5 times your regular rate of pay) for every hour over 40 that you work in a given week. You are owed this over and above your regular salary. This is also true if your boss gives you a bonus and tells you that it is in consideration of overtime hours you have worked.

Sometimes, my boss has me do certain things before my shift starts to get ready for work, after my shift ends to close down or even work at home. Should I be paid for this time?

Yes. You are entitled to be paid for these “off the clock” activities. If you have been working off the clock for no additional compensation, you may be owed overtime pay from your employer.

I am not a U.S. citizen. Can I bring a claim for unpaid wages?

Yes, your citizenship does not matter.

I made an agreement with my boss that I will work more than 40 hours some weeks but he or she would not have to pay me overtime. Can I now make a claim for overtime pay for those weeks I worked more than 40 hours?

Yes. An agreement made between an employer and an employee to not pay overtime wages is likely not valid. Your right to overtime wages cannot typically be waived by such an agreement or contract.

Will my boss fire me or retaliate against me if I make a claim for unpaid wages?

The Fair Labor Standards Act contains harsh penalties for employers who retaliate against workers who make a claim for unpaid wages. If you think you have not been paid fairly for your work, there are many reason why you should speak with a lawyer. However, if you have been fired or retaliated against for bringing it up to your employer, an additional claim can be made against your employer to get your job back, get the pay you are owed both before and after the retaliation and seek other penalties.

I did not take lunch breaks or I worked through lunch while I ate. Sometimes I would take a 15 minute break during the day. Am I entitled to be paid for that time?

Yes. Your employer is only allowed to deduct from your pay for breaks that are twenty minutes or longer and that are actually taken, not just scheduled.

I get paid by salary (for instance $500 every two weeks). My boss says because I am paid by salary, I am not eligible for overtime pay if I work more than 40 hours in a week. Is that true?

Probably not. Hourly employees are generally entitled to overtime for hours worked in excess of 40 hours. However, just because an employee is paid by salary, instead of hourly, that does not mean he or she is not also entitled to the same overtime pay. Some employees, such as executives, administrators, professionals and others, are not entitled to overtime pay. However, the manner in which you are paid does not determine your eligibility for overtime. If your boss is telling you that you do not get overtime just because you are on salary, he is wrong. If you are not sure whether you are entitled to overtime, I would suggest talking to a lawyer about your situation.

I get paid by commission. My boss says because I get paid by commission, I am not eligible for overtime if I work more than 40 hours in a week. Is that true?

Probably not. Hourly employees are generally entitled to overtime for hours worked in excess of 40 hours. However, just because an employee is paid by commission, instead of hourly, that does not mean he or she is not also entitled to the same overtime pay. The manner in which you are paid does not determine your eligibility for overtime. If your boss is telling you that you do not get overtime just because you are paid by commission, he is wrong. If you are not sure whether you are entitled to overtime, I would suggest talking to a lawyer about your situation.

I work in construction and I get paid for each project I complete. This is called being paid at a piece rate. My boss says because I get paid per project like this, I am not eligible for overtime if I work more than 40 hours in a week. Is that true?

Probably not. Hourly employees are generally entitled to overtime for hours worked in excess of 40 hours. However, just because an employee is paid at a piece rate, instead of hourly, that does not mean he or she is not also entitled to the same overtime pay. The manner in which you are paid does not determine your eligibility for overtime. If your boss is telling you that you do not get overtime just because you are paid at a piece rate, he is wrong. If you are not sure whether you are entitled to overtime, I would suggest talking to a lawyer about your situation.

My boss considers me an independent contractor and gives me a 1099 form instead of a W-2 form. Am I entitled to overtime for working over 40 hours in a week?

You may be. The label “independent contractor” does not have anything to do with whether you are eligible for overtime pay. What does matter is the nature of your job duties and your relationship with your employer. If you think you may be categorized as an independent contractor but may be entitled to overtime pay, I would suggest talking to a lawyer about your situation.

What other types of jobs are not entitled to overtime pay?

Each case needs to be evaluated specifically, however the regulations discuss different types of positions that may be exempt from overtime pay such as:

• commission sales where more than half of the employee’s earnings come from commissions and the employee makes on average more than 1.5 times the minimum wage (currently $6.79 in Florida as of 1/1/08) per hour
• computer professionals making at least 427.63 per hour
• employees of motor carriers operating through interstate commerce if his/her duties affect the safety of the operation of vehicles in transportation of passengers or property
• employees of certain seasonal and recreational establishments
• farmworkers employed on small farms
• Salepersons and mechanics employed by automobile dealerships
• executive, administrative, professional and outside sales employees paid on salary, depending on the circumstances and job duties
• other positions

Sometimes I travel for work. Does this travel time count towards y hours when calculating how I should be paid?

Yes. If traveling is part of your work duties, you are entitled to be paid for that time, whether it is during work hours or after hours. However, routine travel time between work and home does not count towards hour for which you must be paid.

I am concerned that I may get fired or I might quit my job and my boss will withhold my last pay check. Can he/she do that?

No. Your employer must give you your last paycheck within a reasonable period of time. Two weeks is typically a reasonable period of time.

My company does not have a overtime policy. Is that a problem?

It probably is. It may indicate that your company is not paying its employees fairly for their work either intentionally or mistakenly because they do not know the law. If you suspect you have not been paid fairly for your work, you should contact a lawyer to have your hours and pay analyzed to see if money is owed to you.

What is the minimum wage?

Minimum wage is set by both the U.S. government and the Florida state government. Florida workers are entitled to whichever minimum wage is higher. As of January 1, 2008, Florida eligible workers are entitled to a minimum wage of $6.79 per hour.

Are there special rules related to minimum wage for tipped employees?

Yes. An employer is permitted to pay tipped employees a wage of half of the normal minimum wage. The employer can count your tips towards getting you up to and above the full minimum wage if you are working a job that normally receives at least $30 in tips per month, you have been informed of this tip credit law and you are allowed to keep all of your tips (except for pooling arrangements with co-workers) and you do not have to share your tips with your employer. If the amount you receive does not at least equal minimum wage, your employer must pay you the difference to get you to minimum wage.