Unpaid Overtime

Since Fieschko and Associates was established in 1981 we have concentrated our practice to just three areas of the law; personal injury, workers compensation and social security disability. This changed on January 20, 1994. I was flying home from Los Angeles. My mother was dying of scleroderma at the time and I visited her and my dad occasionally on weekends. Throughout the flight I had been dictating and working on files. Towards the end of the flight, the man sitting in front of me introduced himself to me and asked me if I was a lawyer (it was pretty obvious that I was).

He told me he was an insurance adjuster who had worked on the Ashland oil spill in Pennsylvania and the Exxon Valdez oil spill in Alaska. He had been paid by the hour on these projects and he had worked long hours, sometimes over one hundred hours per week, but he had not been paid overtime. He asked me if he had the legal right to be paid overtime, and I told him I didn’t know, but I would look it up for him when I got back to Pittsburgh.

The long and short of it is that he was entitled to overtime, but his employer refused to pay him what he was due. We filed a lawsuit for the $49,000.00 he was due in overtime. We won at trial, we won on appeal to the Third Circuit Court of Appeals, and then we won in the United States Supreme Court in April of 1997. The employer still refused to pay, until I threatened to execute on their corporate office building in Atlanta. My client received $142,000.00, which included the unpaid overtime, a like amount in liquidated damages, attorney’s fees and costs. With this case, we began to practice in a fourth area of the law, class actions for overtime wages under the Fair Labor Practices Act.

Class Actions for Unpaid Overtime-the Law

The law governing unpaid overtime is the Fair Labor Practices Act. The law itself is fairly simple. If you work over forty hours per week, your employer must pay you at a rate one and one half times your normal rate. This is not a custom, it is the law. It applies equally to union and non-union workers. The law does not require employers to pay time and one half to workers who work holidays, or who might work over eight hours per day. Those are customs. Time and one half is the law for over forty hours per week.

There are three major exceptions to the law. If you work as a “professional” in a job requiring advanced education, such as a doctor or lawyer, you are not entitled to overtime. If you are an “executive” who supervises two or more people you are not entitled to overtime. If you have and “administrative” job using discretion and independent judgment concerning matters of importance to your employer’s general business you are not entitled to overtime. Except for these three narrow exceptions, and a few exceptions that protect particular industries such as trucking, farming and computer programming the law requires your employer to pay you overtime.

Our law firm has discovered that many employers violate this law. We have represented insurance adjusters, county police officers, jail guards, delivery persons, warehouse workers, park rangers, factory workers, insurance investigators, fracking workers, home healthcare workers, electricians and janitors in these cases. We have recovered millions of dollars for these clients over the past thirty years.

This law is very far reaching. If you are being paid by the hour and you are not receiving overtime wages once you work more than forty (40) hours per week, your employer is probably in violation of the law. You and all of your fellow employees are entitled to the overtime wages that you have not been paid, plus an equal amount of liquidated damages, attorney’s fees and costs. If you fall into this category, you should contact our office and we will investigate for you. Don’t be afraid to contact us even if your claim is very small, The law recognizes that individual’s claims are often for a small amount of money, so most of these cases are now filed as class actions.

Also, if you are paid a “salary”, you are still entitled to overtime if you worked more than forty (40) hours per week unless you fall into one of the three exempt categories (“professional”, “executive” or “administrative”.) For example, if you are a secretary earning $26,000.00 per year but your boss makes you work more than forty (40) hours per week, your wage rate is based upon forty (40) hours per week over a one year period at the rate of $26,000.00 per year ($500.00 per week, or $12.50 per hour). For any hours over forty that you work each week you are owed money and we can get it for you. In this example, you are owed an additional $18.75 per hour for every hour over forty, even if you are on salary.

Two recent areas of litigation involve “unpaid time” and “misclassification.” For example, the workers building the cracker plant in Beaver County recently settled an “unpaid time” case for over $38,000,000. Specifically, the workers had to park off-site, take a shuttle to the work site and then don their work clothes. Paid time didn’t start until they started working, but the travel on the shuttle and the donning of work clothes constituted the performance of a function necessary to perform their job duties and they were entitled to payment for that time.

On the “misclassification” cases, the employer designates their employees as “independent contractors”, thereby saving themselves overtime payments, unemployment tax, workers compensation insurance and withholding tax. The law forbids employers to designate their employees as independent contractors unless they meet strict criteria. Think of it this way. My secretary is my employee, but if I hire someone to put a roof on my house he is an independent contractor. The differences involve permanence of relationship, manner of payment, right to control the way the work is performed, whether the person’s work is integral to the employer’s business, whether the worker brings his own tools and equipment and the opportunity for profit or loss depending on managerial skills.

One word of caution. There is normally a two year statute of limitations, or three years for an intentional violation, so if you have a claim you need to move quickly. Also, if your employer failed to post the required Fair Labor Standards Act poster informing you of your rights, there may be an extension. However, these two exceptions can make a claim much more difficult, so you should definitely file your claim within two years whenever possible.