FAQ

Employment Law Frequently Asked Questions

Wage and Hour FAQs

At Brady & Associates, our clients come to us looking for help in a variety of employment law issues. Whether they have questions about wage and hour issues, overtime, salaried employee overtime exemptions or on-call time, we offer helpful, straightforward legal advice.

To set up a free phone consultation with a lawyer in our Overland Park, Kansas, law office, call us at (913) 696-0925 or toll free at (866) 309-9441.

Wage and Hour FAQs

What is the FLSA?

The FLSA stands for the Fair Labor Standards Act. It is a federal statute that:

• Defines the 40-hour workweek
• Sets requirements for the payment of overtime premiums
• Sets the federal minimum wage
• Places restrictions on child labor

Are salaried employees ever entitled to overtime?

Yes. Pursuant to the FLSA, employees are entitled to overtime unless they fit within a few, fairly narrow overtime exemptions. In order to meet these exemptions, your employer must generally prove two basic facts. First, your employer must pay you on a salary basis of at least $455 per week. This means that you are not paid by the hour and are paid the same pre-determined amount regardless of the quality or quantity of your work. Second, your primary job duties must involve the exercise of independent judgment or discretion. Typically, this entails the ability to hire/fire, set schedules, make decisions regarding the overall direction of the company or other high-level discretion oriented decisions that will bind the company. Thus, only those employees who are both paid on a salary basis and have primary job duties involving the exercise of independent judgment and discretion are not entitled to overtime.

I'm a salaried "manager" who does not receive overtime, but most of my job duties are the same as the employees that I manage; should I be receiving overtime?

Probably. As mentioned above, an exempt employee must have, as their primary duty, job duties involving the exercise of independent judgment and discretion. Therefore, if you are a "manager" who performs classically exempt work such as hiring, firing and setting schedules for employees, but your primary duty involves work that does not involve such independent judgment and discretion, it is likely that you are not exempt and are, therefore, entitled to overtime. For example, a salaried "manager" at a grocery store who only performs managerial functions a small percentage of each week and spends the majority of her time stocking shelves or working the cashier is not going to satisfy the primary duty aspect of the overtime exemption and will be entitled to overtime.

Does my job title make me exempt from overtime?

No. Your job title has nothing to do with whether or not you are entitled to overtime. The true focus of the analysis is on your job duties, responsibilities and method by which your employer pays your compensation. See above.

My employer calls me an independent contractor. Am I entitled to overtime?

True independent contractors/1099 workers are not entitled to overtime. However, employers often misclassify workers as independent contractors. The general rule is that employees are entitled to overtime. For purposes of the FLSA, independent contractors are not employees and therefore, the FLSA's overtime requirement does not apply. However, labeling of a worker as an independent contractor has no affect on whether or not the worker is considered an employee. For information on the differences between employees and independent contractors, see below.

What does it mean to be an independent contractor and not an employee?

In the determination of whether a worker is an independent contractor or an employee, courts will look at all the circumstances regarding the workers' employment. First, the court will look at the degree of control over the work exercised by the employer. Workers whose employers tell them what, when and how to do a job are rarely independent contractors; employers hiring true independent contractors are results-oriented and will not tell their workers how to get the job done. Second, courts look at the extent of the relative investment of the worker and the employer. Independent contractors own their own equipment, set their own hours and risk losing other jobs. Third, courts look at the degree to which the worker's opportunity for profit or loss is determined by the employer. Independent contractors have enough control over their work that they can protect against losing a job; employees are at the mercy of their employer in making important decisions. Fourth, courts look at the degree of skill and initiative required in performing the worker's job. Fifth, courts look at the permanency of the relationship between the employer and the worker. True independent contractors work on discrete projects for employers; an independent contractor who works consistently for the same company and performs similar projects may not be considered an independent contractor for purposes of the FLSA. Finally, courts look at whether the worker performs an integral part of the employer's business operations. For example, a lawn care company cannot hire workers to mow lawns and call them independent contractors, these workers would be considered employees because they are performing an integral part of the employer's business operations.

What are improper deductions?

Improper deductions are deductions taken from employees paid on a salary basis to pay for business-related expenses, such as gasoline, lodging, uniforms, and more.

What is off-the-clock work?

Off-the-clock work refers to time worked outside of normal hours. Staying late at a job, for example, can constitute off-the-clock work.

What is on-call time?

On-call time refers to time employees must be available to report to work if called, in addition to their normal work hours. To constitute on-call time, employees must be within a certain number of miles from the place of employment. By being on-call, employees are generally unable to use their time effectively for their own purposes.

What does it mean to be exempt?

Exempt employees are not entitled to receive overtime pay. Depending on a number of criteria, the following professions may be overtime-exempt: Professional, administrative, executive, computer technology, and outside sales.

If I sue for unpaid wages or overtime, should I worry about losing my job?

By law, employers cannot retaliate against an employee who asserts his or her rights to overtime wages. However, employees may have options available other than filing a lawsuit for unpaid wages. Employees should not feel threatened that they may lose their jobs if the contact an attorney or otherwise attempt to assert their rights.

How much should my overtime rate be?

The United States Department of Labor determines overtime pay rates. Generally, any non-exempt employee working over 40 hours in a single workweek should receive one and a half times his or her regular pay for any hours worked beyond 40.

Can my employer require me to work overtime?

Generally, yes: An employer can require an employee to work overtime. If the employee refuses to work extra hours, he or she can be fired.

How do I know if I am an "exempt" employee and therefore not entitled to overtime compensation?

The Fair Labor Standards Act mandates exempt vs. non-exempt employee status. Exemption is based on a number of criteria, including whether employees are paid on salary and what their job duties entail. Find out more on our salaried employee page.

Is there a statue of limitations on wage claims?

It is possible to file a claim regarding unpaid overtime that occurred up to three years ago. In certain situations, it may be possible to file a claim regarding a case that occurred more than three years ago. Talk to an employment law attorney to find out more.

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