What Are Overtime Violations?

Employers Not Paying Overtime

Since the 1930s, a majority of U.S. employers have a legal obligation to pay qualifying employees overtime wages for working over 40 hours in a single workweek. What started as an economic stimulus program is now an employee’s right. However, despite overtime pay being part of employment law, some employers attempt to dodge their legal obligation through various means. When it comes to employers not paying overtime, workers may have a legal case. To determine whether they should approach a legal professional, employees should first educate themselves on overtime violations and how to protect their rights.

How Does Overtime Work?

The Fair Labor Standards Act declares that covered companies must pay qualified workers time-and-a-half for every hour worked over a 40-hour workweek. While the FLSA covers most U.S. companies, not every employee qualifies for overtime pay. Usually, the FLSA covers companies that make at least $500,000 in sales every year. Employees who work in interstate commerce (doing business across different states) also qualify for overtime pay. Sending out-of-state mail, making phone calls to different states and sending or receiving goods from different states are all examples of interstate commerce. Beyond federal law, companies must also determine if state law requires them to pay workers overtime.

Some states, such as California, have adopted a daily overtime standard. Under this standard, nonexempt employees may receive overtime pay for every hour they work beyond eight hours in a single workday. Say that a worker in a daily overtime state works a 12-hour shift. This person qualifies for four hours of overtime pay, no matter if that was the only shift the person worked that week. In a state that does not have a daily overtime standard, that same employee would not receive any overtime for working the same 12-hour shift or three 12-hour shifts within the same week.

Which Employees Do Not Qualify for Overtime Pay?

Companies do not have to pay specific employees overtime if they fit into an exception, such as the following:

  • Sailors 
  • Independent contractors
  • Administrative, executive and professional workers paid a salary
  • Employees working in fishing operations
  • Seasonal employees working for recreational or amusement companies (county fairs, ski resorts)
  • Criminal investigators

The above is only a small sampling of exempt employees.

When Are Executive, Administrative and Professional Employees Exempt From Receiving Overtime?

Before automatically excluding executive, professional and administrative employees from receiving overtime pay, employers must double-check that they do not fit into an exception. To qualify for an exemption, white-collar employees must receive a salary and work a position that requires independent thinking and requires discretion. Some states have supplementary requirements, which employers must also research.

Employees paid a salary must receive at least $684 a week, every week, no matter the quality or quantity of work performed or the number of hours worked. If a business subtracts a worker’s pay for missing work for a doctor’s appointment or failing to meet a sales quota, that employee does not receive a salary, which means they qualify for overtime pay. That said, sometimes employers have the legal right to dock an exempt employee’s pay without violating the worker’s exempt status. Workers who miss a full day of work in violation of a business’s paid vacation or sick leave policy may not receive their full salary for the time missed.

Besides salary requirements, exempt employees must also perform specific job duties. All work that exempt employees perform must relate to an employer’s business operations. Exempt employee positions must require an advanced degree to perform their duties, or their responsibilities must be supervisory or managerial. Exempt workers must also have the authority to make advanced executive decisions.

What Are Common Overtime Violations?

There are several ways that an employer may commit an overtime violation.


A company may intentionally misclassify an employee as an exempt manager, only that employee has the same job responsibilities as the employees under them. A company may also misclassify a worker as an exempt white-collar employee even though the worker’s role does not require independent judgment, an advanced degree or discretion. Another example of misclassification is using the number of hours an employee works to determine pay rather than paying that person an actual salary.

Failing To Count Hours Worked

A business may properly classify an employee but not properly pay that person for the hours worked. For example, a manager may force an employee to work during a meal or rest break, or an employer may force employees to work either after clocking out or before clocking in. An employee may work at home but not receive payment for it, or a company may not pay team members for the time they spend putting on or taking off protective clothing or gear at a worksite. Employees should also receive compensation for mandatory activities such as required training.

Miscalculating Hourly Rates

The overtime premium is time-and-a-half of an employee’s standard pay, but a company may fail to include all necessary forms of compensation, such as commissions, wages and shift differentials. Employers may also neglect to count prizes and bonuses based on employee performance.

How Can Employees Report Hour and Wage Violations?

Employees who feel that their company violated the law by failing to pay overtime may file a complaint either in person or by mail with the Department of Labor’s Wage and Hour Division. The complaint must include specific details:

  • Dates the violation(s) occurred
  • The worker’s name, telephone number and address
  • The company’s name, address, phone number and business type
  • Description and job title of work performed
  • Method of compensation, how often the employee receives compensation, amount of compensation and related payment information
  • Description of the violation(s) 

The WHD looks into complaints by conducting an investigation. So that companies cannot retaliate or discriminate against those who report wage violations, all WHD complaints remain confidential.

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