Building a Strong Case to Recover Unpaid Overtime and Money Damages
Did your employer fail to pay you for overtime when you worked more than 40 hours in a workweek? If so, you may have a claim for up to two times the amount of overtime you are owed.
The first step is educating yourself about your rights. The overtime laws are extremely complicated. How complicated? The U.S. Department of Labor estimates that up to 70% of employers make mistakes when trying to figure out how to comply with the wage and hour laws.
Start by reading this article, then call us at (212) 601-2728 for a free and confidential consultation.
Are you entitled to overtime pay if you are paid by the hour?
Your right to overtime pay depends on whether you are classified as an “exempt” or “non-exempt” employee. As a general rule, if you are paid by the hour, then you are considered a “non-exempt” employee and are entitled to overtime pay.
This means that you must be paid one and one-half times your regular rate of pay when you work more than 40 hours during a workweek.
There are some exceptions, but most employees who are paid by the hour must be paid overtime rates when they work more than 40 hours in a workweek.
Here are just some of the types of employees who are usually entitled to overtime pay:
- Ambulance Drivers
- Call Center Workers
- Certified Nursing Assistants (CNAs)
- Construction Workers
- Customer Service Representatives
- Delivery Drivers
- Emergency Medical Technicians (EMTs)
- Factory Workers
- Home Health Aides
- Licensed Practical Nurses (LPNs)
- Nurses in Nursing Homes
- Personal Bankers
- Retail Store Workers
- Service Technicians
- Supermarket Workers
- Tipped Employees
- Undocumented Workers
- Waiters and Bussers in Restaurants
If your job title is not on this list, don’t worry. Call us at (212) 601-2728 and we will help you figure out whether you are entitled to overtime pay.
Are you entitled to overtime pay if you are paid a salary?
Your right to be paid overtime depends on the type of work you actually do, not on how you are paid. As a result, you may be entitled to overtime pay even if you are paid a salary.
In order to avoid paying overtime to a salaried employee, your employer must prove that you are “exempt” from the overtime laws. The most common exemptions are for professionals such as architects, doctors, lawyers, accountants, and some nurses. If you have a professional license, and you must actually use your professional knowledge and skills to do your job, then you are probably not entitled to overtime pay.
There are also exemptions for executives, managers, and high-level administrative work. This exemption is not as clear cut. Obviously, the CEO of a company does not have to be paid overtime. The same is true for senior managers who make hiring and firing decisions. An assistant manager at a bank or retail store, however, may be entitled to overtime depending on what type of work they actually perform.
When in doubt, check with an experienced employment lawyer.
What evidence do you need to build a strong case for overtime pay.
Here is the basic evidence you need to build a winning case for overtime pay:
Your Compensation Records: Pull together all of your pay stubs and other compensation records. Pay stubs are important because they show how much you were paid, how that pay was calculated, your rate of pay, and the number of hours you worked. If you don’t have pay stubs, then pull together any other records showing how you were paid. This may include direct deposit notices or bank statements.
Your Time Records: You will have to prove how many hours you actually worked each week. This can include time records, work schedules, or your own notes. Sometimes you have to be a little creative. For example, we won a six-figure settlement for construction workers who kept track of their hours by writing on wall calendars when they started and ended work each day. We have also won cases for restaurant workers who used Point of Sale (POS) system records to show when the first check was opened and when the last check was closed each day. In all of these cases, the court accepted our records, even though the employer’s time clock records showed fewer hours.
Your Job Responsibilities: If your employer will claim that you are an “exempt” employee or an “independent contractor,” then you will need evidence to show what your actual job responsibilities are. This may include a job offer letter, a job description, organizational charts, work schedules, internal memos, or emails showing the type of work you do.
What is the next step to getting paid for all the overtime you deserve?
Congratulations on taking the first step by educating yourself about your right to overtime pay. Now you need some expert advice.
We begin with a conversation. We will listen to your specific situation, review any documents you have, and answer your questions. Once we understand your specific situation, we will tell you what your options are.
There is no charge for this consultation and advice. If you have a strong case, we will represent you on a contingency fee basis. This means that you will not owe us any legal fees unless we win.
Do not delay. There are strict time limits to file your claim. Call us today at (212) 601-2728 to start the conversation and get the advice you need to build a winning case.