Can I Sue My Employer For Not Paying Overtime?

Some employers may not be paying their workers overtime, meaning their employees are entitled to seek compensation through legal means.

If an employee works more than 40 hours in one workweek, they may be eligible for overtime pay. Any hours over 40 hours are to be paid at 1.5 times the usual payrate. Both state and federal laws govern overtime pay, and the employer has to pay the more favorable (for the employee) of the two.

Most jobs are eligible for overtime under the Fair Labor Standards Act.

Depending on the employee’s job category, they may be exempt from overtime. Workers in administration, professional, or executive work, such as hospital workers, state employees or IT professionals are often exempt from overtime. Outside salespeople, who usually sell away from the office, are usually exempt from overtime pay.

If an employee meets all of the following three criteria, they may be classified as exempt:

  • The employee’s salary is over $23,600 per year or $455 per week
  • The employee is paid on a salary basis
  • The employee’s duties are 51% or more exempt duties

There are a few exceptions for certain industries, but to be classified as exempt, an employee must pass the above three criteria.

Assistant Manager Title Might Mean No Overtime

An assistant manager’s classification as exempt or non-exempt is determined by their job duties. If a retail assistant manager earns more than $445 per week or $23,600 per year and performs the following duties, they are not eligible for overtime:

  • Regularly supervise two or more employees
  • Set employee schedules
  • The ongoing and primary duty is managing the store and employees
  • Makes decisions on hiring and firing
  • Conduct employee evaluations and discipline.

However, if an assistant manager regularly performs non-executive duties (as 51% or more of their duties), then they would be eligible for overtime wages.

Non-executive duties include:

  • Working the cash register
  • Helping customers
  • Cleaning the store
  • Cooking food
  • Stocking shelves
  • Mopping up spills
  • Taking out the trash
  • Unloading trucks
  • Collecting carts from the parking lot

Cloaking employees in manager or assistant manager titles does not mean an employer cannot be sued for misclassification and failing to pay overtime.

Dishonest Employers Can Face Lawsuits

California is often celebrated as championing workers’ rights; it offers many provisions to protect employees from employers. Under California law, you are able to take legal action to claim unpaid overtime and challenge misclassification as exempt.

Not paying overtime is a violation of both state and federal labor laws, and employees can file an overtime pay lawsuit or overtime class action lawsuit. It is against the law to discriminate against or fire an employee who files or assists in an FLSA employment claim.

If a company is found to willfully violate FLSA, they may be fined up to $10,000 and criminally prosecuted. A second willful violation could send the responsible parties to prison.

A skilled and experienced employment lawyer can inform you of your rights and the best course of action. Nakase Accident Lawyers & Employment Attorneys offer free consultations so you can seek quality legal advice for your situation.

Brad Nakase, Attorney

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