© 2017 Gear Law, LLC. Photo of Mr. Gear © 2017 Jay Carlson. All rights reserved.

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1.   What am I entitled to recover if I bring a claim and win?

  

You are entitled to the unpaid overtime your employer failed to pay you for either the two (2) or three (3) year period dating back from when your lawsuit was filed in Court.

  

2.   What if it has been a long time since I worked there?

  

As long as you file your complaint within two to three (2-3) years from the date you ceased working at your previous employer, you should be within the statutory guidelines.

3.   If I complain to my employer about not receiving overtime wages, can my employer fire me or take other negative actions to retaliate against me?

  

No. The Fair Labor Standards Act (FLSA) provides that an employer may not retaliate against any employee who attempts to secure their unpaid wages in a lawful manner.

4.   Should I be afraid of my employer finding out that I have discussed my concerns with an attorney?

  

All conversations you have with Gear Law, LLC are covered under the attorney-client privilege, so your employer will not be privy to any disclosure of information.

 

5.   What if I am paid a salary or the same amount every week?

  

It is not uncommon for employers to classify many workers as “exempt” simply by paying them a salary and incorrectly asserting to them that their salary prevents them from being eligible for overtime. However, a salary alone DOES NOT mean you are necessarily exempt from overtime. The Fair Labor Standards Act (FLSA) considers your actual job functions and responsibilities when determining if you are truly “exempt” or “non-exempt.”

6.   What if I’ve been paid the same hourly pay rate for all of my hours worked, even those over forty (40)?

  

Under the Fair Labor Standards Act (FLSA), covered employees are entitled to receive time and one-half of their regular hourly rate of pay for all hours worked in excess of forty (40) per week, so if you were only paid “straight-time” wages for overtime hours you worked, you may still be owed the additional “half-time” wages that were unpaid.

7.   What if I am a supervisor or manager?

  

Your job title alone does not determine whether or not you are entitled to overtime pay. The Fair Labor Standards Act (FLSA) uses the duties and responsibilities determination in determining an employee’s eligibility for overtime.

8.   What if my employer classifies me an “independent contractor?”

  

Independent contractors are still employees under the law. There are a number of important factors that ultimately determine whether you are an “employee” or an “independent contractor” under the meaning of the Fair Labor Standards Act (FLSA) and overtime compensation laws:

  

  • Who set your hours and daily work schedule?

  • Who determined your job duties?

  • Did you work at your employer’s office or job site every day?

  • Who paid for the tools and equipment used in carrying out your work?

  • Do you perform work for multiple companies at the same time?

 

9.   What if I worked “off the clock?”

  

If your employer has a reasonable expectation to know that you were working “off the clock,” you may be eligible to recover unpaid overtime wages for those hours if you were worked more than forty (40) hours in a week within the past three (3) years. It does not matter whether an employer specifically told you to “clock out” and then finish your work because you did not finish on time. Courts have awarded “off-the-clock” pay for employees for activities such as:

  

  • Maintaining equipment

  • Staying late after normal shifts without “putting in” for overtime

  • Doing job-related paperwork at home

  • Working through meal periods

  • Many other activities that vary across industries

10.  What if my employer didn’t know that I worked off the clock?

  

Your employer is responsible for paying you for overtime hours worked regardless of whether or not the employer specifically monitored you on a particular day. Under the Fair Labor Standards Act (FLSA), employers must keep detailed time records of the hours their non-exempt employees work each week.

11.  What if my overtime hours were not approved in advance?

  

Under the Fair Labor Standards Act (FLSA), employers are not permitted to accept the benefits of your hours worked without properly compensating you for all hours you work in excess of forty (40) in a workweek. This means that most employers must pay you for your overtime hours even if you didn’t specifically first obtain permission to work those hours.

12.  What if I can’t prove the amount of time spent working off the clock?

  

Employers are required to maintain accurate time records of the hours their employees work. If an employer does not maintain complete time records, the employee is entitled to prove the extent of their hours worked. As a result, the law does allow you to estimate the number of hours you worked in a particular workweek even if you do not have a direct breakdown of every hour, and the employer will have the burden to challenge how realistic your knowledge or estimate is.

13.  How do I know what counts as a “work” time?

  

Many Courts have held that work time under the Fair Labor Standards Act (FLSA) includes all time spent performing job-related activities that:

     

  • Genuinely benefit the employer

  • The employer “knows or has reason to believe” are being performed by an employee

  • The employer does not prohibit the employee from performing

  

These can include activities performed during “off-the-clock” time, at the job site or elsewhere, whether “voluntary” or not.

14.  What if I travel from one place to another throughout the course of my workday but my employer only counts my time at each job site?

  

Employees are generally entitled to be compensated for time spent traveling between job sites during a workday.

15.  Can my employer combine my hours worked in different weeks to avoid paying me overtime hours that I worked in one (1) week?

  

No. Overtime is determined on a workweek basis. An employee’s workweek is a fixed and regularly recurring period of 168 hours (7 consecutive 24-hour periods). This means that if you work 43 hours in one week and 37 hours in another, a covered employer still owes you three (3) hours of overtime pay even though your hours for the two-week period combined to total eighty (80) hours.

16.  What if I am paid tips?

  

Even tipped employees who work in service occupations are normally entitled to overtime compensation for hours worked in excess of forty (40) within a typical workweek.

17.  Can I waive my rights if I sign a severance agreement or other document when I leave my job?

  

Private employers can’t force their employees to sign away their rights to minimum or overtime wage, even in a severance agreement or other contract. The law does not permit employers to avoid their obligation to pay overtime wages simply by asking an employee to waive their rights.

 

18.  Am I entitled to bring a claim for unpaid overtime wages or minimum wages if I am not a U.S. citizen or legal resident?

  

Yes.  Your citizenship or status are not relevant to whether you can bring a claim under the Fair Labor Standards Act (FLSA).

19.  Is money recovered in an overtime or minimum wage case taxable?

  

Yes, unpaid wages are taxable, just like regular wages earned.

19.  How much will your legal services cost?

  

For wage and hour cases, Gear Law, LLC represents virtually all of its clients on a modified contingency fee basis, with the firm generally charging low upfront fees or costs unless a successful recovery is made on your behalf. Additionally, the Fair Labor Standards Act (FLSA) requires employers who violate the law to pay for the reasonable attorneys’ fees and costs that a successful plaintiff has incurred during a lawsuit.

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