This is an excerpt from one of the recent episodes of 'Do I Need a Lawyer?' hosted by: Gary Martin Hays.
If you have a question you would like for me to answer, or if you would like to speak with me regarding a potential claim, please give us a call right now.
Now let's go to the next question from one of our viewers.
Hi Gary:
I have a question for you. And the question doesn't have anything to do with personal injury, but here goes.
I've been working for a store as a cashier for a little over 6 months now. I'm averaging between 50 - 55 hours per week. But here's the problem. The store is not paying me overtime for the hours that I work each week over 40 hours. Am I entitled to be paid overtime?
Can you help me???
-Pamela in Conyers
Pamela, thanks for the question.
Let me start off by saying this for the benefit of all of our listeners.
My law firm does specialize in personal injury, wrongful death, and workers' compensation claims.
However - I want all of our viewers to know this.
If I can't help you, I'll at least give you some recommendations and resources you can use to find someone that should be able to help.
And chances are I can recommend someone that specializes in your area of need.
Let's get to your question.
Are you entitled to overtime pay when you work more than 40 hours a week as a cashier?
It depends on how you are classified under the Fair Labor Standards Act - or the FLSA.
A worker is either an exempt or a non-exempt worker.
Non-exempt worker are generally "blue collar" workers, manual laborers, or others who perform non-technical, routine duties with little or no supervisory authority or discretion.
If you are classified as a non-exempt worker - it means the FLSA applies to you and you are definitely entitled to overtime wages at the rate of time and a half.
Exempt workers are employees to whom the FLSA overtime pay provisions do not apply.
Employers do not have to pay them at the rate of time and a half.
Exempt workers could include:
* Executive and professional employees - including teachers and academic administrative personnel in elementary and secondary schools;
* Outside sales employees;
* Employees in certain computer related occupations;
* Certain commissioned employees of retail or service establishments.
Now please understand - exemptions are narrowly defined under the FLSA. So please do not take this list as all inclusive as there are so many variables that could bring your job under the FLSA requiring the employer to pay overtime compensation.
Whether someone is exempt or non-exempt is very difficult to analyze as there are a lot of facts that could push the classification one way or another.
I'd encourage you to speak with an attorney regarding the specifics of your employment arrangement.
Pamela - as a cashier, you should definitely be considered a non-exempt worker.
This means your employer should be paying you at the time and a half overtime rate.
Employers try to avoid paying their workers overtime in a variety of ways:
(1) They may give the employee a fancy title such as a manager or assistant manager - yet they will still try to get them to perform primarily non-exempt work functions.
(2) Employers may try to get the worker to perform "off the clock" duties for which they receive no compensation.
* This may include the time they are required to "get ready for work"
* Time worked after clocking out;
* Time spend on telephone calls, emails, or text messages.
* Time putting on special work clothing and taking the clothing off.
(3) Employers may not compensate employees for the correct amount of time worked - including time for required meetings and training sessions.
Why do employers do this? Why do they fail to pay their employees overtime compensation?
* It is less expensive for employers to violate the FLSA even if they are sometimes sued for unpaid wages since only a handful of employees every bring a claim.
* Numerous employers simply believe they can get away with it - especially in this economy. Workers would rather keep their job than complain about not being paid overtime.
* Some employers can claim they are unable to afford overtime pa.
* Sometimes it is simply ignorance of the law.
So what are your rights if you have not been paid overtime as required by law?
(1) Back pay - for all of the amounts you are owed but have not been paid.
(2) Liquidated or double damages.
(3) In some cases - your legal costs and attorneys' fees.
(4) you may also be able to bring a "collective action" for other workers.
I know this is a lot of information.
Pamela - The easiest thing for you to do is just pick up the phone and give me a call to discuss your claim.
And the same applies to anyone that believes they have not been fairly compensated for overtime wages under the Fair Labor Standards Act.
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