Perhaps you saw the recent news about the New York transit workers who were arrested and charged for falsely claiming overtime pay, in staggering amounts. In a report last year, the Empire Center for Public Policy, a non-partisan think tank, blew the whistle on the schemes, including one individual who was paid for working 5,546 hours in 2018, or 15 hours per day, every day of the year.
What does not so easily grab the attention of the media and public is the far greater incidence of overtime that is honestly earned but not paid. The United States Department of Labor enforces the federal overtime rules. The rules require employers to pay time-and-a-half for any hours worked in excess of 40 in a 168-hour (one week) period. States also have their own overtime laws. Further, if an employer knows or suspects that an employee is working overtime from home, it must pay them for that time, regardless of whether the employee makes a claim for it.
As the COVID-19 pandemic spread, remote work became necessary, and even mandated, for large segments of the workforce that had previously been working at employer sites. Many of these new remote workers are in hourly or non-management salaried positions, which are subject to these overtime laws. The remote working requirements of the COVID-19 pandemic have significantly increased the incidence of overtime violations in this new group of remote workers.
Most overtime violations fall into one of three broad categories; each of these have heightened risk of happening in the case of the remote work required by the COVID-19 pandemic:
- Improper classification of workers as supervisors; just because you are on a salary or called an assistant manager, does not mean you are exempt from the overtime rules.
- Not counting all hours worked.
- Not calculating the hourly rate correctly, i.e., without all benefits and bonuses included and all expenses excluded.
Employers have an obligation to pay workers for all hours the employer has reason to believe a worker has worked, and also has an obligation to prevent workers from working on things the employer does not want done. The US Department of Labor confirms that the employer is responsible for controlling the hours worked. Here are some tips for making sure you are legally and fairly paid:
- Track your time. Not only a great productivity booster, tracking your work time with one of the many available time-tracking apps can provide invaluable support when seeking unpaid wages.
- Let your employer know how many hours you are really working (in writing).
- Know the rules of the place where you are working from. If you are working from California, for example, California rules apply to you, even though your normal place of employment is in a different state.
- Keep track of all expenses you incur. If the expenses for phone, computer, travel to the office for meetings, etc. cause your hourly rate to fall below the minimum wage where you are located, your pay must be increased to at least that minimum wage, and overtime based on that wage.
If you have accrued unpaid hours, especially since the pandemic hit in March, you should act now. The federal overtime laws have either a two or three year statute of limitations, but memories can fade and documents can be lost, so it’s best to address unpaid overtime when you first suspect it.
When non-compliance is found, many employers cooperate and pay back unpaid overtime and fix the problems going forward. Others, do not. They defend complaints often trying to use the confusing overtime laws to their favor. In addition, workers who are seen as blowing the whistle by simply seeking their legal rights often suffer illegal retaliation.
We’re Here to Help
If you have been unfairly denied overtime pay, you should seek advice from a reputable employment attorney. It is often the case that when overtime violations are found for one worker, the employer is paying a number of people incorrectly and a class action suit should be considered. Contact us today for a free consultation, to both put your mind at ease and to be sure you do not miss the deadline to make a claim.