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Wage & Hour
What are Unpaid Wages? Am I due overtime?
- Both Florida and federal law require that an employee be paid the minimum wage for the first 40 hours of work per week. Federal law also requires most employers to pay a higher “overtime” rate (1.5 x regular pay rate) for any work performed beyond the 40-hour mark.
- In other words, no employer has the right to withhold money you earn while working, including full and/or partial paychecks (with or without overtime pay), tips, commissions, or earned vacation time, among others.
- Unfortunately, however, employers often violate these labor laws by withholding employee paychecks; forcing them to work “off the clock” or through breaks that are automatically deducted from the employee’s timesheets; not paying an employee’s travel time between job sites; taking tip money or sharing tips with the wrong employee; not paying employees an hourly rate, just tip money; paying the regular rate for overtime work, and misclassifying employees as managers or salaried to avoid paying overtime.
- It’s important to speak with a trusted Miami wage and hour lawyer if your employer/former employer is withholding money or paying you incorrectly.
- In the meantime, it may be a good idea to familiarize yourself with some topics that are central to most unpaid wage claims. Also, be sure to keep a personal record of all the hours you are working, copies and records of payments, as well as your timesheets and schedules.
What Are Some Examples of Unpaid Wages?
These are some of the wage & hour cases that employment attorney Alberto Naranjo has personally handled to help recover unpaid wages throughout Miami and Florida. Names have been changed to protect client confidentiality, but the details of the story remain the same.
- Tony was a young man guy working online customer service for a mid-size tech company when he contacted AN Law Firm, P.A. For about three years, Tony answered customer questions via live chat, a common hourly-wage job with regular overtime. But Tony was being paid a salary, and internal company records classified him as a “manager.” Alberto Naranjo was able to prove the company knowingly misclassified him to avoid paying overtime, recover years' worth of lost wages, and cancel a non-compete agreement that prevented Tony from working for a competitor.
- Enrique worked full-time at a high-end Miami Beach restaurant. After being forced to work significant overtime during Thanksgiving week in 2017, his employer withheld Enrique’s overtime/time-and-half pay. In other words, Enrique was only paid his regular hourly rate for all hours, even when he worked more than 40 hours in one week. Alberto Naranjo recovered all of Enrique’s unpaid wages and double the amount as liquidated damages. Enrique’s employer was also forced to cover attorney fees and costs.
- Maria left her commission-based job at an e-commerce company for personal reasons and on good terms. Shortly thereafter, though, she realized the company withheld the commission she’d earned and didn’t pay out her unused vacation days. Her former employer also refused to be a reference, making it difficult for Maria to build credibility with potential future employers. Alberto, however, was able to recover all the money Maria’s company withheld, plus attorney fees, costs, and a guaranteed neutral reference.
- Ash had already stopped working at the telemarketing firm when her final paycheck arrived; unfortunately, the amount was far less than she was owed. But even after informing her supervisor via text about the mistake, Ash’s former employer refused to pay withheld pages. AN Law Firm, P.A., however, was able to recover the unpaid wages and a refund for equipment the company forced Ash to purchase.
- Mario, a landscaper, regularly worked over 40 hours a week for a local lawn service company but was never paid for those overtime hours. Alberto fought to recover all of Mario’s unpaid wages, plus liquidated damages, attorney fees, and costs.
What is the Fair Labor Standards Act (FLSA)?
- The Fair Labor Standards Act (FLSA) established a minimum wage, overtime pay, recordkeeping, and youth employment standards for private-sector employees, as well as those who work in federal, state, and local government. It protects the majority of US workers.
- The FLSA requires employers to classify jobs into one of two categories: exempt and non-exempt. The majority of workers in America are non-exempt and protected by the FLSA rules and regulations, which means an employee would be owed at least the minimum wage plus overtime pay (time and a half) for all hours worked over 40 in a week.
- The FLSA also protects employees against employer retaliation. Employers cannot terminate, reduce hours, or take adverse action against employees pursuing unpaid wages. This applies to both current and former employees and includes payment for past and current work performed.
- Employees are advised to request unpaid wages in writing and to keep a personal record of all written requests.
What is a Non-Exempt Employee?
- The American workforce is majority non-exempt and protected by the FLSA. Those employees are usually paid hourly wages, as opposed to fixed salaries, and are legally entitled to overtime pay when applicable. It is important to note that just because you are paid a salary, this does not mean you are not owed overtime.
- Exempt employees need to determine if their job duties should be classified as non-exempt or if the company wrongfully deducts their salary for hours not worked.
- An employee that supervises other employees set other employees’ work hours or schedules, hires or fires employees, and performs outside sales exempt.
What is an Exempt Employee?
The FLSA typically classifies exempt employees into three categories: professional, administrative, and executive. Their compensation is not directly tied to hours worked. As such, they don’t have the same protections afforded to the non-exempt majority under FLSA and don’t get paid overtime.
The three most common categories for exempt employees under FSLA are:
- Professional
- Professional jobs typically rely on an employee’s independent judgment and/or discretion and often require specialized education. For example, creative professionals--writers/journalists, artists, musicians, etc.
- Administrative
- Administrative jobs typically involve office or non-manual work that is directly related to business operations or management. For example, human resource officers and payroll specialists.
- Executive
- Executive employees are usually in management, especially those who have the authority to hire and fire/recommend hiring and firing employees. For example, a regional manager who directs the work of at least two or more other full-time employees
What is Overtime Pay?
- Most employees earn a higher hourly rate than their base rate after working over 40 hours a week. These employees are protected by Federal overtime law, which uses a simple mathematic equation to calculate the overtime pay rate.
How Do You Calculate Overtime Pay?
Hourly Pay Rate x 1.5 x Number of Overtime Hours Worked.
- For example, Jill earns $10 per hour and worked 46 hours last week. She will earn $15 for each of the 6 hours she worked over 40. Therefore, her next paycheck will be $490 as opposed to her regular $400.
Your base pay or hourly rate may be higher or lower than you think based on any bonuses that are paid on a regular basis or earned, as well as based on the hours you work. The same does not apply to exempt employees.
How to Protect Yourself Against Unpaid Wages
The following tips help employees protect themselves against unpaid wages:
- Work Records and Logs
- Maintain a personal logbook (not on company-owned devices) documenting all the time you worked. Include copies of all of your pay stubs and keep a detailed record of your work schedule.
- Written Requests
- Request unpaid wages in writing and keep a personal copy for evidence. Text messages and emails are fine, but be sure copies are saved on personal devices.
- Save Employee Documents and Read the Handbook
- Employment contracts/agreements or offer letters usually detail your pay structure. Ask HR for copies of any documents you have to sign and familiarize yourself with payroll policies outlined in the employee handbook.
- Contact an Employment Law Attorney
- Unpaid wage claims are complex and require expert legal advice. Before speaking with your employer, speak with experienced Miami wage & hour lawyer Alberto Naranjo.
Unpaid Wages: The Bottom Line
- Wages laws are among the most important protections in a democratic, capitalist society. They prevent anti-capitalists and wrongful advantages that some businesses try to use to gain an advantage over other companies and employers. This ensures that all employees are paid for all hours worked and that no employee is forced to work for no pay. Labor laws are indescribably nuanced whether you’re exempt or non-exempt.
- The bottom line, however, is that no employer has the right to hold your money hostage. You work, they pay; it’s how the employer/employee dynamic works. But every case is different.
- If your employer is withholding wages, contact AN Law Firm, P.A. in Miami, FL, for a risk-free consultation with a wage & hour lawyer about your unpaid wage claim.