Overtime Law

Pelton & Associates, PC is a leading firm that specializes in representing plaintiffs in unpaid minimum wage and overtime litigation. Our firm has brought dozens of claims on behalf of individual employees and classes of employees to recover the unpaid overtime due to hardworking current and former employees. Our attorneys have successfully resolved claims brought on behalf of employees in the financial services & banking, technology, medical, home health services, security, construction, restaurant & bar, retailing and hospitality industries. The firm currently serves as co-lead counsel in an action seeking damages on behalf of employees of a wireless telephone company, and is conducting further investigations into unpaid “off the clock” wages owed within the telecommunications industry.

The Fair Labor Standards Act (“FLSA”) establishes minimum wage, overtime pay, record-keeping, and child labor standards affecting full-time and part-time workers in the private sector and in federal, state, and local governments. Covered non-exempt employees are entitled to receive a minimum wage plus overtime compensation at a rate of not less than one and one-half times the regular pay rate for hours worked in excess of 40 per workweek.

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FLSA lawsuits pursued by Pelton & Associates, PC typically involve: (1) employers improperly classifying employees as exempt from the FLSA overtime regulations by giving them important-sounding job titles such as manager or assistant manager but then requiring them to perform primarily non-exempt job functions; (2) employers requiring workers to perform “off the clock” work for which they receive no compensation, including time required to get ready to work and time worked after punching out, including time spent on telephone calls, emails and text messages; (3) employers failing to compensate employees for the true number of hours worked; and (4) employers paying their employees “straight time” for hours worked in excess of 40 hours per week or otherwise failing to pay employees at the correct overtime rate.

Employers fail to pay their employees proper overtime compensation for numerous reasons, including: (1) it is less expensive for employers to violate the law even if they may be sued for unpaid wages, since only a handful of employees will bring suit and the company will save money in the long run; (2) supervisors, managers, division heads and other employers often seek to maximize profits within their respective divisions by not paying overtime compensation in order to look better to their bosses, pushing all subordinate employees to provide additional work without full compensation; (3) numerous employers simply believe that they can “get away with” violating the law because their employees are lucky to have a job and would never stand up to their boss; (4) financially strapped employers often claim that they are unable to afford overtime compensation; and (5) companies often misclassify workers as exempt, in order to avoid paying overtime and, in doing so, cut expenses. Many salaried employees are entitled to overtime compensation and the United States Department of Labor has found most violations of the Fair Labor Standards Act’s overtime requirement to be “intentional” or “willful,” allowing wronged employees to seek recovery for the past three (3) years of unpaid overtime.

Most states have also enacted labor laws which may provide employees with additional overtime protection. As such, Pelton & Associates, PC attorneys typically bring overtime lawsuits for violations of the FLSA and the state labor laws. Under the New York Labor Law, employees may seek recovery for the past six (6) years of unpaid overtime. FLSA and state law claims are frequently brought individually by the named plaintiff and on behalf of a group containing all similarly situated employees.

FLSA/Failure to Pay Overtime claims are fact-specific and should be handled by attorneys familiar with this area of law. You may be entitled to receive back overtime compensation, liquidated damages of two-times unpaid wages, costs and attorneys’ fees, plus certain other measures of damages provided by state law. The FLSA and most state-law equivalents contain anti-retaliation provisions, which prohibit employers from taking adverse employment action against an employee who files a complaint for overtime violations. More specifically, the FLSA states that it is “unlawful for any person … to discharge or in any other manner discriminate against an employee because such employee has filed any complaint or instituted any or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding.”

If you feel as though your employer has improperly failed to pay you overtime, contact Pelton & Associates, PC today for a FREE CONSULTATION by completing the free case evaluation found on this website, emailing info@peltonlaw.com or calling our offices at (212) 385-9700 or toll free at (888) 542-8529.

FLSA Coverage & Exemptions

FLSA coverage depends on the nature of the job functions performed by an employee, not the employee’s title or whether the employee was paid on an hourly or salaried basis. In order to be exempt, employees must typically be paid on a salary basis, and they must perform job duties that the Department of Labor has classified as exempt. Merely paying an employee on a salary basis does not exempt an employee from FLSA overtime requirements. While other exemptions exist, the most-frequently encountered are the executive, administrative, and learned professional exemptions. When Congress enacted the FLSA, it created an exemption from the overtime pay requirements for “any employee employed in a bona fide executive, administrative, or professional capacity or in the capacity of outside salesman.” The Department of Labor revised the FLSA overtime provisions in 2004, setting forth the following standards for the executive exemptions:

Executive Employee Exemption

In order to qualify for the Executive Employee Exemption, all of the following tests must be met:

• The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $455 per week;
• The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise;
• The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
• The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of
• status of other employees must be given particular weight.

Administrative Employee Exemption

The administrative employee exemption applies to bar overtime pay to salaried managers whose primary job duties include the overall management of the business operations. In order to qualify for the Administrative Employee exemption, all of the following tests must be met:

• The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
• The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
• The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

Learned Professional Exemption

The Learned Professional Exemption applies to bar overtime compensation for architects, attorneys, CPA’s, veterinarians and certain other professionals. In order to qualify for the Administrative Employee exemption, all of the following tests must be met:

• The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
• The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
• The advanced knowledge must be in a field of science or learning; and
• The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

Creative Professional Exemption

The Creative Professional Exemption applies to bar FLSA coverage for certain writers, producers, directors and other employees working within creative fields. In order to qualify for the Creative Professional employee exemption, all of the following must be satisfied:

• The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week; and
• The employee’s primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.

Computer Employee Exemption

The Computer Employee Exemption has been recently revised and no longer requires that employees be paid on a salary basis. In order to qualify for the computer employee exemption, the following must be satisfied:

• The employee must be compensated either on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week or, if compensated on an hourly basis, at a rate not less than $27.63 an hour;
• The employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the duties described below; and
  • The employee’s primary duty must consist of:
  • the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
  • the design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
  • the design, documentation, testing, creation or modification of computer programs related to machine operating systems; or
  • a combination of the aforementioned duties, the performance of which requires the same level of skills.

Outside Sales Exemption

The Outside Sales Exemption applies to bar FLSA coverage for employees engaged in outside sales activities (salespersons who travel to their clients and call on the clients at the client’s location). Inside sales people (individuals who place sales calls from their employee’s offices) are not exempted by the Outside Sales Exemption. In order to qualify for the outside sales employee exemption, all of the following tests must be satisfied:

• The employee’s primary duty must be making sales (as defined in the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and
• The employee must be customarily and regularly engaged away from the employer’s place or places of business.

Highly Compensated Employees

Highly compensated employees performing office or non-manual work and paid total annual compensation of $100,000 or more (which must include at least $455 per week paid on a salary or fee basis) are exempt from the FLSA if they customarily and regularly perform at least one of the duties of an exempt executive, administrative or professional employee identified in the standard tests for exemption.

State Law Exemptions

Please note that some state wage laws include exemptions that are even more pro-employee than the FLSA exemptions. For example, under the New York Labor Law executive, administrative, and learned professional exemptions, employees must be paid a weekly salary of at least $543.75 (unlike the FLSA, which requires only $455 per week).

If your employer classifies you as an exempt employee but pays you less than $543.75 in New York, call Pelton & Associates, PC today to discuss your legal rights.