You are entitled to be paid for all of the time that you work. You are entitled to be paid the minimum wage. If you work more than 40 hours in a work week, you are entitled to be paid overtime. Overtime pay is 1 ½ times your regular hourly rate. Our New Jersey wage and hour attorneys are here to answer any questions during your free consultation.
The Fair Labor Standards Act, which is a federal law, requires most workers to be paid overtime for all hours that they work over 40 hours in a work week if you are working more than 40 hours in a work week. Oftentimes workers are not even aware that they are owed overtime. An overtime lawyer at Jaffe Glenn Law Group will review your situation and advise you as to whether you may have a wage claim.
For example, a worker may assume that if he or she is paid a salary, that he or she is not entitled to overtime. This is simply not true. The courts look at several factors of an employee’s work to determine whether he or she is entitled to overtime, salary being just one of the factors. Depending on the employee’s position, whether overtime must be paid varies. For example, workers that are titled as “managers” or “assistant managers” or “administrators” are routinely paid a salary and routinely work more than 40 hours a week. An analysis of a workers’ job duties, in large part, is determinative of whether the worker is being misclassified and cheated out of pay. These job titles have very specific meanings under the Fair Labor Standards Act and associated state laws that prohibit your employer from cheating you out of overtime pay in these misclassification cases.
Employers routinely commit wage theft. An employee may think that he or she cannot bring a claim because they do not have time records in their possession or time has not been kept by the employer. This is simply not the case. The responsibility of keeping accurate and contemporaneous time records is on the employer. The legislature created this law for obvious reasons; because what employees have access to their time records? Or, even if they do have access to them, who would even think to keep copies of these time records? Most obvious, however, is that if employers were not required to keep time records, and it was the responsibility of the employee to keep these records, the employer would simply destroy time records every week.
Questions you may wish to ask yourselves if you believe that you are being cheated out of overtime pay are: Does your employer automatically deduct meal time from your pay, despite the fact that you often work through your meal time? Despite the fact that your employer has a time clock, which keeps exact time of your entrance to and exit from work, does your employer round your time to the nearest quarter hour, instead of paying you for all time worked? You can rest assured that your employer is most oftentimes not rounding in your favor. The scenarios where an employer effectively cheats their employees out of money are endless.
Another way that an employer cheats you out of overtime pay is when your employer adds the total hours worked in a two-week period together, and so long as combined the hours don’t exceed 80, you are not paid overtime. This is incorrect and unlawful. The law states that an employer must review an employee’s hours of work, week by week to see if an employee works more than 40 hours in a week. So, if you work 50 hours one week, and 30 hours the next week, you are owed 10 hours of overtime on your 2 week pay check, even though the total number of hours is equal to 80.
Are you a tipped employee? If so, there are very specific laws as to how your employer has to pay you. An employer can take what is called a “tip pool credit” and pay you significantly less than minimum wage, so long as the inclusion of your tips and the rate of pay received is equal to minimum wage. However, for example, if all waitstaff pool their tips, and then the tips are split amongst workers that do not customarily wait on patrons of the restaurant, such as managers, or kitchen staff, your employer has violated the tip pool credit. If there is a tip pool credit violation, your employer must pay you minimum wage and one and one-half times that minimum wage for your overtime hours.
Another common problem facing an employee is when your employee calls you an independent contractor and does not pay you overtime. Just like the example given above with “administrator” and “manager”, a title alone does not determine your employment status. The courts review very specific criteria in determining whether you are actually an independent contractor versus an employee. Some of these factors are whether your employer directs your work (tells you where and how to perform certain tasks), whether your employer provides tools and requires you to wear certain clothing for your work, whether your pay is tied to the profit of the business, whether your employer tells you when you have to work, whether you are trained by your employer, whether your employer provides health insurance and other benefits, whether you are performing the same work for others during the same time period when you are not working for your employer, whether you are just working with the employer on one job, whether the employer pays you through a company that you formed, and whether you are directed to where a uniform with your employer’s name on it. And the list continues. Beware, however, that an employer’s use of the “independent contractor” defense so as to avoid paying overtime is often improper and the misclassified employee is owed money.
The federal law, in the first instance, assumes that a worker is entitled to overtime, unless an exception (exemption) applies. An employee that is not entitled to overtime is called a “non-exempt” employee.
The first category of employees that are not entitled to overtime are employees that fall under the “Managerial Exemption”. The exemption is as it sounds, an employee that is a manager is not entitled to overtime. An example of an employee that may not be entitled to overtime because he or she is considered a manager. A court will look to several factors to determine if an employee is an exempt manager. Is the employee paid a salary that is at least $455.00 per week? If an employee is not paid a salary, the analysis stops there, and the employee is owed overtime. However, even if the employee is paid a salary of $455.00 per week, the analysis of whether the employee is owed overtime continues. Other important factors are whether the employee manages 2 or more full time employees, whether the employee hires and fires, whether the employee sets the schedules of other employees, whether he or she sets the rates of pay of other employees, whether he or she is regularly managed by another employee, how much the difference in pay is from the alleged manager and those that he or she supervises, and most importantly, what percentage of his or her time at work is spent managing as opposed to the amount of time spent performing the type of work that the other employees are doing. The title given to an employee by an employer is similarly not dispositive on whether an employee is entitled to be paid overtime.
The second general category of employees that are not be entitled to overtime, fall under the “Administrative Exemption.” Again, being paid a salary is only one factor in determining whether the employee should be paid overtime. Even if the employee is paid a salary, he or she may be misclassified as an exempt employee and is entitled to overtime pay. In order for this exemption to apply, an employee must perform non-manual work directly related to business operations or management. The employee must exercise judgement and discretion of matters of significance. So, an employer cannot avoid paying overtime by paying a salary to an office worker. Therefore, an office assistant is entitled to overtime even if he or she is paid a salary. For that matter, the general common sense approach is if the employee is not making large decisions on behalf of the business, in all likelihood he or she is owed overtime pay for the hours worked in a workweek over 40 hours.
If any of these fact patterns sound familiar to you, the attorneys at Jaffe Glenn Law Group aggressively prosecute wage and hour violations on behalf of employees. The attorneys at Jaffe Glenn Law Group will help you recover your unpaid wages.
If you intend to pursue a claim for unpaid wages that your employer has refused to pay, New Jersey employees can only go back two (2) years from the last week that you worked overtime. You may be barred from bringing claims if you wait too long, or you may also lose time for your claim if you wait. New York law allows a worker to go back 6 years. However, again, you must contact an attorney immediately if you decide to fight for your rights.
Call the Jaffe Glenn Law Group today at (201) 687-9977 for your free consultation. We are here to discuss your pay issues. In most cases, upon recovery, our fees are paid by your employer.