Q: I work in a large office with approximately 100 people. There are 10 managers who oversee a staff that does mostly support work such as bookkeeping, secretarial, and customer interaction in person and on telephones. The staff is paid a flat salary that ranges from $350.00 to $700.00, even though we routinely work over 48 hours each week. Management has advised us that because we are paid a salary the company does not have to pay us overtime at time and one-half. Is this true?
A: No. Management does not have the right to avoid paying overtime compensation for work performed after 40 hours by paying the workers a salary. Generally, if the work performed is non-supervisory, and not of a professional or complex nature requiring a high degree of independent action, then the company must pay for all overtime hours worked.
Q: My job requires a lot of travel during the day to different customers and work locations. I am paid by the hour for all of my time "in the field" however, when I return home at the end of my work day I spend about 1 to 2 hours doing paperwork that my employer refuses to pay for. Is this time that I spend at home doing paperwork for the company compensable?
A: Yes. "Off-the-clock" time is compensable, even if the employer claims that it does not have to pay you for time spent working "away from the job" or "after normal work hours." Some examples of "off-the-clock" work include (i) construction workers who must report to the shop to load and unload trucks before and after the shift but are not compensated for such time; (ii) office workers who are required to remain at work after normal work hours for meetings, or training; (iii) employees who typically perform work functions from their personal phones or from home after normal work hours.
Q: I have been working for a company for the past 9 months as a secretary. When I was hired, the company told me that my position was not permanent, and that I would therefore be paid as an independent contractor. I am required to work from 9:00 am to 7:00 pm Monday through Friday and every other Saturday. Each week I receive a flat salary of $450.00, regardless of the number of days and hours that I worked. No taxes are taken from my check. Unlike the other "permanent" employees, I do not receive overtime payments, nor am I entitled to participate in the medical and pension plan. May my employer continue to do this?
A: No. There are many tests to determine whether a person is truly an independent contractor. The real test is how "independent" your work really is. In many instances workers who required to work set hours, and have little job autonomy are not really "independent contractors." Employers often classify workers as independent contractors solely to avoid having to pay payroll taxes, and to make social security contributions. With respect to medical and pension benefits, it is generally unlawful for the employer to exclude an employee form participating in a company wide medical or pension plan once you have worked 1000 hours (approximately 6 months) for the company.
Q: I am interested in bringing an overtime case. How far back does my claim go?
A: Under the Fair Labor Standards Act, your claim can go back either two or three years depending upon whether your employer's actions were willful. State law claims vary. For instance, under New York wage and hour laws, your claim can extend back as far as six years, while in New Jersey, overtime claims only extend two years.
Q: I work for a small company that is having serious financial problems. The company stopped paying us overtime almost one year ago. If the company goes out of business, can we recover our unpaid wages?
A: Generally yes. Workers have certain protections under the FLSA to bring a personal suit against the owner of the company. In addition, under New York law, workers may bring an action against the ten largest shareholders of a privately held company so long as they meet certain notice and filing requirements.
Q: I am a non-union carpenter employed by a subcontractor on a large courthouse construction project. I am being paid $20 per hour regardless of the amount of hours that I work. I typically work from 7:00 am until 5:30 pm with a one-half hour unpaid lunch break. There is a Department of Labor poster at the job site that indicates that carpenters should be paid a wage rate of $30.00 per hour with an additional $15.00 per hour in benefits. My boss tells me that because I am not in the union he is not required to pay me as a carpenter, and he does not have to provide any paid benefits. Is this true?
A: No. In almost all cases when you work on a government construction project that is subject to payment of prevailing wages and supplemental benefits you do not need to be a member of the union to be paid at the rate set for the type of work you are performing. Therefore, if you are doing the work of a carpenter you must be paid at the carpenter's prevailing wage and benefit rate, regardless of your skill level. Also, if the company does not provide medical or pension benefits, then you must be paid the benefit rate as part of you total hourly wage.
