Should you be getting overtime?
|By Dana Dratch
If you've been putting in extra
hours, you might be entitled to extra pay.
Whether you're hourly or salaried, blue-collar or
white-collar, if you've been giving your boss more than 40 hours
per week, you're due time-and-a-half for each hour of overtime,
unless you fit into one of the exceptions.
"The basic rule is that employees are entitled
to overtime," unless the employer can show that they fall into
one of the exceptions, says David Borgen, co-chair of the wage and
hour committee for the National Employment Lawyers Association and
partner with the California-based firm of Goldstein, Demchak, Baller,
Borgen & Dardarian.
The employer has the burden of proving the employee fits the
category, he says.
If employees "think they are being
cheated on their pay, they probably are -- and they should investigate,"
says Borgen. "Employees are woefully underinformed and employers aren't much
"The issue is not if you go over 40
hours," says Rachel Geman, partner with the firm of Lieff Cabraser
Heimann & Bernstein LLP. "The issue is when you
go over 40 hours."
you qualify for overtime? Here's the basic test under the federal rules. If you
can answer "yes" to any of these questions, you're probably entitled
|Do you qualify for overtime? |
you get paid by the hour? |
you make a salary that goes down if you miss work?|
your weekly salary consistent, but less than $455 a week?|
If you meet any of these criteria, and aren't getting
overtime for extra hours, "don't panic, but it's a real wake-up call to educate
yourself," Geman says.
Get paid by the piece or by the trip instead of by
the hour? That alone doesn't exempt you from overtime pay, says
Todd Nierman, shareholder in the Indianapolis office of Littler
Mendelson PC. The fact that you are "not being paid hourly
is not going to change that," he says.
Some groups of salaried people are exempt from overtime pay. To
be included in one of them, you must first meet three criteria.
|3 criteria make you exempt from overtime:
flat salary, rather than hourly wage.|
the same amount each pay period (regardless of how many days or hours you've worked).|
salary is equal to or greater than $455. (The minimum may be higher in some states.)|
In addition to the three tests, there are also a series
of job-duties tests. If you perform one of the following duties,
you may be exempt from overtime.
|Here are a few of the most common exemption categories|
|6 most common exemptions:|
1. The executive
exemption: Is your primary duty supervising two or more
full-time people? If so, the law says that you don't get overtime.
"Supervising," has to mean that you've got some clout
-- the ability to hire, fire, discipline, etc. If you're just the
head assistant to the assistant manager and "supervising"
consists of reminding the night staff to leave their Nintendos at
home, that doesn't count.
Be sure to examine your actual duties, not your title.
"Just because someone's called a manager doesn't mean they're exempt from
overtime," says Geman.
2. The administrative
exemption: This is one of the most misinterpreted exceptions.
It covers people who impact the management or business of their
employer or the employer's customers. Often, it's misconstrued to
include secretarial staff, but it really covers people such as human
resource heads and chief accountants, who may not directly supervise
anyone, but who make decisions on behalf of the firm. The test:
You have to exercise independent judgment and discretion. Do you
have the power to make decisions unsupervised? Do you formulate
or affect management policies? Can you speak for the employer or
enter into contracts on matters of financial importance without
supervision? Can you waive established policies? Do you offer expert
advice? If so, you might qualify in this category.