Home-workers

A home-worker is any person who is employed to do their work at home. Some examples of this type of work include:

  • seamstress
  • data processor
  • telephone surveyor
  • bookkeeper
  • craft piecework

All of the time that you spend working in your home should be counted as hours worked. This does not include all of the time you are at home, including your private day-to-day activities that do not pertain to your work.

Office Workers

Most office and clerical workers are “nonexempt,” which means they are entitled to overtime pay if they work more than 40 hours in a workweek. Problems commonly arise when employers do not include certain activities as hours worked that should be counted.

  • Failure to pay for time spent working through lunch, staying late to finish a task or project, running an errand on the way home that is work related, or doing work at home.Misclassification by your employer as “exempt,” meaning not due overtime pay
  • Salaried employees that do not meet the requirements for exemption
  • Any off the clock must be included as hours worked and paid as overtime if it is over the 40 hours.

Resident Employees

These are employees who are required to live on the premises for their job:

  • apartment complex manager or maintenance person
  • house parent in group home
  • resident assistant in a dormitory

There are many problems that exist in these types of work arrangements.

  • you are not paid for hours that you are required to be on the premises when you are eating or sleeping, but you are on call for your job duties during that time
  • the agreement or contract is not clear on the hours you are required to work and the hours you have for personal time
  • the agreement or contract implies you should be paid, but you are not paid

General Rules

  • All of the hours you are required to be on the premises should be counted as hours worked.
  • All of the time you spend working should be counted as hours worked.

Salaried Employees

The FLSA does not require overtime pay for salaried employees if certain other conditions are met.

  • just because a worker receives a salary that does not mean the worker cannot be due overtime
  • Reduction in employee’s pay for time missed when sick
  • Failure of employers to pay full salary owed each week.
  • Employees classified as management who do not actually perform management tasks as set out by the law
  • Employees with degrees that usually apply to the exemptions, but who are not using the degree on the job
  • Employers confusing acquired job skills with the use of independent judgment
  • Any off the clock must be included as hours worked and paid as overtime if it is over the 40 hours.
  • Salaried employees receive a set pay each workweek without taking into account the actual number of hours worked

Consider the following factors:

  • Management or supervision of other employees means that two or more full time employees report to you for work assignments and oversight of their daily tasks
  • Are you subject to pay docking if you miss part of the regular work day?
  • If so then you are not exempt from overtime pay because pay docking is inconsistent with your status as a “salaried” manager or supervisor.
  • This is where most employers get into trouble.
  • Managers/Supervisors must spend at least 80% (in retail and service industries 60%) of their time in management duties
  • In other words, if you spend a large part of your time performing tasks such as ringing up sales, preparing food orders or filling in for absent non-managers then you may not be a “true” manager or supervisor and might be due overtime.
  • If you spend a large part of your time performing tasks such as ringing up sales, preparing food orders or filling in for absent non-managers then you may not be a “true” manager or supervisor and could be due overtime.
  • Some employers will abuse so-called salaried assistant and associate manager employees, requiring them to perform a large amount of “fill-in” work for non-salaried employees who do not show up for work. This occurs more often when hiring is tight. This illegal practice works because the employer uses as an incentive the possibly becoming a manager with a much greater salary and eligibility for greater bonuses. Often, the salaried assistant and associate manager employees will work a very large number of overtime hours, resulting in a very large amount due the employee. The amount due could be in the tens of thousands of dollars. Unfortunately, this unfair practice is much more common than most people think.
  • Some examples of management duties include:
    1. setting the schedules of other employees
    2. making decisions about hiring or firing employees
    3. directing the work of at least 2 other full-time employees

Training & Apprenticeships

Whether trainee, students, or apprentices are employees subject to the FLSA overtime provisions depends upon their job activities.

  1. Training is similar to what you would be taught at a vocational school
  2. Training is for the benefit of the trainee or student
  3. Trainees or students do not replace regular employees, but work under close supervision
  4. There is no benefit to the employer who gives the training and sometimes the employer may even be at a loss
  5. The trainees or students are not getting a job at the conclusion of the training period
  6. The employer and the trainees or students understand that they are not entitled to wages for the time spent in training

If you are an “Apprentice,” then you might not be due overtime pay or minimum wage law requirements. Some employees learn a trade through on-the-job training and additional classroom training usually held outside of working hours.

  1. The apprentice is employed under a written apprenticeship agreement or program which meets government standards, and
  2. The training time does not involve productive work or performance of the apprentice’s regular duties

An informal agreement to treat the time spent in related instruction as hours worked does not meet this requirement. The agreement that the time spent is hours worked must be in writing.

Check with an attorney if you are not sure if your agreement meets the requirement or not.

Do you have an overtime dispute?

Schedule a free consultation