Overtime PayOvertime Pay – General Overview

The Fair Labor Standards Act of 1938 (FLSA) is a federal law which provides Employees to be paid Premium Pay, by the Employer, at one and a half times the employee’s regular rate of pay for all hours worked above forty (40) in a single work week, unless an “exemption” applies. This law is applicable throughout the U.S. and cannot be waived or decreased by any State, County, or Municipal laws or ordinances, although such laws/ordinances may provide greater protections and damages. The FLSA provides a two-year lookback period and an additional year if the Employer made a “willful violation.” Also, the FLSA provides monetary damages for Unpaid Overtime Pay, Liquidated Damages (an equal amount of unpaid Overtime wages), Attorney’s Fees and re-imbursement of costs to prosecute the claim. If you signed a waiver or release, it DOES NOT WAIVE OR RELEASE YOUR OVERTIME CLAIMS. FLSA overtime pay claims can be pursued as a single action or as a FLSA Collective action claim. Specific Exemptions come in many forms, vary in complexity, and are based on the actual job duties and responsibilities and NOT on a job’s title or description.

Call Lytle & Barszcz today 407-622-6544 to have a confidential discussion about your potential claim(s).

Overtime Pay Law Definitions

Federal overtime pay law is applicable in every State throughout the United States. States may provide greater protection and greater damages than what the FLSA provides, but MAY NOT reduce or waive these rights provided by the FLSA.

An Employee under the FLSA is economically dependent on the employer for work and engaged in an employment relationship.

• If you are paid a W-2 and the Employer withholds some of your pay in taxes, you are an Employee, with limited exceptions (called Exemptions).
• If you are paid and receive an IRS 1099 form without pay withheld, you MAY be an Employee and may be owed overtime pay. The definition of “Employee” is very broad under the FLSA and many factors are considered to determine whether you are an Employee and potentially owed overtime pay. Ask Lytle & Barszcz whether you are an Employee under the FLSA.
Premium Pay is one- and one-half times an Employee’s regular rate of pay.

An Employer under the FLSA is only covered when it meets the following factors:(1) Is engaged in interstate commerce; and (2) has annual revenue greater than $500,000. The definition of Employer may vary according to specific State laws, and not all States provide overtime pay protections for their employees. As a limited example, Illinois provides for an automatic three-year lookback period (no need to prove “willfulness” to get a third year), New York provides for a six-year lookback period, while Florida and Georgia have no specific State overtime pay laws. Ask Lytle & Barszcz 407-622-6544 about the overtime pay laws and protections you may have applicable to you in your State.

An Employee’s Regular Rate of Pay is determined in a variety of ways depending on how one is paid. Employees can be paid by: hourly, piece rate, day rate, or even misclassified as “exempt” (paid by salary), among other ways to calculate compensation. It is not uncommon for an Employer to misclassify employees and pay them a salary, and not actually know or apply the law regarding paying employees correctly!
Hours worked only includes time actually worked and does not include hours paid for any other type of time that is paid and not worked, such as, PTO (Paid Time Off), vacation pay, sick time, bereavement leave or any other time paid but not actually worked.
A Single Work Week is a seven-day consecutive period chosen by the Employer. A pay stub will indicate the period upon which compensation is being paid.

An Exemption is an exclusion which takes away an employee’s ability to be paid the premium pay of “time and a half” or have the FLSA apply at all. There are many exemptions and most are complex to correctly apply, which is why you need an attorney to review job duties and responsibilities to advise you as to whether you may or may not meet an exemption. See Specific Exemptions with Examples below!
A Lookback Period is a time period set when an Employee asserts their rights to be paid their unpaid overtime pay by either filing a lawsuit or joining a current one.

Overtime Pay FLSA

A “willful violation” of the FLSA provides an Employer to pay an Employee (or Collective Class of Employees) calculated back an additional year (third year) of a lookback window. The burden of proving a willful violation stays with the Employee.
Monetary Damages under the FLSA are for unpaid overtime pay wages calculated properly with an equal amount of liquidated damages and additionally, an award for attorney’s fees and costs of prosecuting the claim.

Waiver or Release of FLSA unpaid overtime pay claims is only upon a settlement and release being approved by the Department of Labor (DOL) or a “Court of competent jurisdiction.” Which means any type of agreement which was not approved by either the DOL or a Court is not worth the paper on which it was written. Congress, in passing this law almost a century ago, took away your ability to privately resolve this type of claim due to the disparate and unequal bargaining position between an Employer and their improperly paid Employee.

An FLSA Collective Action is not a regular Class action. Collective actions require an affirmative act by the Employee to “Opt-In” to a Class to be a member. This is different from a “regular” Class action (Fed Rule 23 Class Action) where a person is automatically a member of that Class if that person meets the definition of the Class, and is a member unless and until the person makes an affirmative action to “Opt Out” of that Class. So, if you don’t exercise your rights to pursue your own unpaid overtime pay by bringing your own claim or joining an existing claim, every week that goes by will drop an additional week off your potential lookback window, thereby reducing recovery of your own damages. The Courts say you are slumbering on your rights, whether you know it or not. However, specific States provide additional protections under their own laws, which include additional damages and lookback windows than those provided under the federal FLSA. Unpaid overtime pay claims under State laws (if they exist) may be pursued as a “regular” Fed Rule 23 Class at the same time as an FLSA Collective Class.

Specific Overtime Pay Exemptions

The most common exemptions are the Professional, Executive, Administrative, Computer, and Outside Sales exemptions. For an Employer to meet any Exemption, it has the burden of proving every element of that exemption. There is also the Motor Carrier Act of 1935 Exemption, for those who drive larger vehicles on interstate roadways. Since the FLSA was passed after the Motor Carrier Act, such drivers may be exempt from FLSA overtime pay claims due to operating larger vehicles.

Recently, the amount of the Salary element of many exemptions was raised and will be in effect in July 2024, with an additional increase in January 2025.

There is a great deal to know about overtime pay laws and claims. Fortunately, you may call Lytle & Barszcz and discuss your potential overtime pay claim today! So, contact Lytle & Barszcz 407-622-6544 for more information.