last update 1-01-2003


Have you worked more than 40 hours per week but not been paid for that time at time-and-a-half rate? If so, you may have a claim under the Federal Fair Labor Standards Act for overtime benefits at that 1 1/2 times rate.

As a general rule, all employees are due overtime premium rate for any time they work over 40 hours per week (29 USC 201 et seq). There is no rule requiring any special payment for time over 8 hours per day or for work on weekends or holidays. Many companies do pay special premiums for those types of conditions but those payments are strictly company policy and have nothing to do with legal requirements. The law only provides for time worked in excess of 40 hours per week.

It doesn't matter whether you are paid on the basis of a salary, hourly wage rate, commission or any other method, you may still qualify. There are categories of work that are EXEMPT from the overtime requirements and many people confuse this status with the fact that they are earning a salary as opposed to an hourly wage.

A company is exempt from paying overtime and the employee is exempt from earning it if he is in a management position. Although the details may be more complex, basically, an employee does not qualify for overtime if he is the manager of a company or of a division and supervises people under him. This may not apply if that employee spends more than 20% of his time doing "hands-on" work as opposed to supervisory work. Thus, even a supervisor would qualify for the overtime premium if he spends a substantial amount of his time in doing the same type of work that he supervises.

If a salaried employee is subject to unpaid disciplinary suspensions, they may not be exempt from being paid overtime. One of the requirements for exemptions from being paid overtime is that payment is on a "salary basis." An employee is not considered to be paid on a salary basis if his pay is subject to dedutctions for disciplinary reasons. Teh sole exception is for "infractions of safety rules of major significance." Moreover, the exemption may be lost to the employer if the employee is subject to such deductions even if he has not actually been suspended without pay. 29 CFR Sec 541.118(a)(5); Auyer v Robbins 117 S.Ct 908 (1997).

Other exemptions are listed at 29 USC 213.

You can make a claim for overtime wages that should have been but weren't paid within the last 2 year time frame. Thus, as time moves along, you lose the opportunity to claim time for the week at the beginning of the 2 year period. However, if the cause of action arose out of a willful violation of the employer, the time is extended to 3 years.

If the employer does not make timely payment, then there is a claim for penalty wages of 100% of the amount of the unpaid overtime pay plus reasonable attorney's fees and court costs. Suit can be brought in Federal or State Court. 29 USC 216

The Governmental regulations relating to overtime at 29 CFR Sec 785.39 through 785.41 provides that travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly worktime when it cuts across the employee's workday. The employee is simply substituting travel for other duties. The time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on nonworking days. Thus, if an employee regularly works from 9 AM to 5 PM from Monday through Friday, the travel time during these hours is working time on Saturday and Sunday as well as the other days. Regualr meal period time is not counted. As an enforcement policy, the Government will not consider as work time that time spent in travel away from home outside of regualr working hours as a passenger on an airplane, boat, bus or auto.

If the employee is required to work while traveling or to be an assistant or helper to a driver, is considered working while riding, exept during meal periods or when permitted to sleep in adequate facilities furnished by the employer.

========================  WARNING  =======================
                      AND DISCLAIMER
This information is provided for the reader's benefit in
becoming familiar with the legal matters discussed.  Your
particular facts may be different from the points above.
You should not rely on the above data without consulting a 
attorney to discuss the specific facts of your case
and the law of your state.

If you live in Louisiana and want to talk about your situation, please call me at:
    Marvin E. Owen
    3036 Brakley Drive
    Baton Rouge, La 70816
    ph 225-292-0099
    toll-free 1-888-292-0116

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