Under state a federal law almost every employee has the right to collect overtime pay, however, many employers violate these laws by refusing to pay qualified employees their earned overtime pay.  Under state law, employees who are not paid their earned overtime are entitled to not only the wages they are due, but also treble damages, and reasonable attorney’s fees and expenses.

If after reading this blog entry you believe that your employer is unlawfully withholding overtime wages from you, contact the attorney’s at Neil S. Cohen & Associates to evaluate your case.

When is an employee entitled to overtime pay?

Assuming an employee is eligible for overtime pay (more on that below), the law normally requires the payment of overtime whenever the employee works more than 40 hours in a workweek (defined as seven consecutive 24-hour periods).  Additionally, in Massachusetts an eligible employee that works in a retail business is entitled to an overtime rate for work performed on Sundays and holidays, regardless of the number of hours worked in the workweek.

How much overtime pay is required?

Generally speaking, if an eligible employee works more than 40 hours in a workweek, he must be paid time-and-a-half for every hour over 40.  The overtime rate is based on the employee's "regular rate" of pay, usually his regular hourly wage.  For example if an eligible employee has a “regular rate” of $10/hour his overtime rate would be $15/hour.

Are all employees entitled to overtime?

No.  Many categories of workers are exempted from the overtime requirement, meaning they do not receive any extra pay for working more than 40 hours in a workweek.

The most common categories of exempt workers include:

·         A bona fide executive, or administrative or professional person earning more than eighty dollars per                 week.
·         The driver of a truck operating in interstate commerce
·         Employees of hotels and motels, gasoline stations or restaurants.

Employees such as bank tellers, loan officers, receptionists, employees of retail businesses, gyms, etc. are eligible employees entitled to an overtime rate.

Determining whether or not an employee is eligible for or exempt from overtime wages is a complex and fact intensive.  For example, employers often claim that ordinary office workers, like receptionists and secretaries and assistants, are "administrative" employees.  However, to qualify for the administrative exemption, an employee must meet certain requirements. In most cases, ordinary office workers do not perform work that meets these requirements.  Therefore, they are not exempt and are owed overtime. If you believe that your employer is unlawfully withholding overtime wages from you, contact the attorney’s at Neil S. Cohen & Associates to determine whether you are eligible for overtime wages.

If an employee is paid a salary, does that mean he is not entitled to overtime?

No.

Many employees (and employers) believe that as long as an employee is paid a salary, he is not entitled to overtime. This is not always the case.  The nature of the job and/or the type of employer dictates whether or not an employee is eligible for overtime.

It is true that many overtime exemptions include, among their various requirements, that an employee be paid a certain minimum salary.  But these exemptions have additional requirements besides the salary requirement -- requirements that pertain to the nature of the employee's work and the amount of responsibility exercised by the employee.

What if an employer fails or refuses to pay overtime?

Failure to pay overtime is a serious violation of state and federal law, and it carries with it serious legal remedies for employees who are not paid the wage they are owed.

These remedies include compensation equal to three times the amount of overtime owed, as well as attorney's fees and costs.  Moreover, overtime laws intentionally favor employees, making it easier for them to prevail in these cases. 

How do employers try to trick employees into thinking they are receiving overtime?


Employers will use many illegal tactics to convince their employees they are either not entitled to overtime or that they are receiving overtime pay when, in fact, that they are not being compensated in accordance with state and federal laws.

A common tactic is to offer employees compensatory time in lieu of overtime.  For example, if an employee works 50 hours in a week, an employer may offer extra vacation time for the 10 hours of overtime worked.  This tactic is illegal.  An eligible employee who works more than 40 hours in a workweek is entitled to his “overtime rate” of one and one half times his regular rate.  Compensatory time does not satisfy this standard.

Some employers may also miscalculate the number of hours an employee works.  Typically, this miscalculation comes in the way of “off-the-clock” work.  Employers will often instruct employees who have worked in excess of forty hours in a workweek to work off the clock or take work home so that they do not reach the overtime threshold.  Sometimes employers will ask that employees postpone logging their hours to the following week so that they do not show more than 40 hours in a single workweek.

Most commonly, employers will convince employees that they are exempt employees not entitled to overtime compensation.  As is mentioned above, determining whether an employee is exempt from overtime compensation is a complex and fact intensive determination that should be reviewed by an attorney.  If you believe that your employer is unlawfully withholding overtime wages from you, contact the attorney’s at Neil S. Cohen & Associates to evaluate your case.

Is my employer violating any other wage laws?

Maybe.  In Massachusetts, employers are held to a very high standard in terms of employee compensation. For example, in most cases employers are required to pay employees for unused vacation time.  If an employee has 10 days of vacation time and only uses 5 days, he is entitled to payment for 5 days worth of wages.  Employers also frequently misclassify employees as independent contractors and fail to pay their withholding taxes and unemployment and social security benefits.  This too is a violation of state and federal wage law.  If you suspect that your employer is not paying you in accordance with Massachusetts law contact the attorney’s at Neil S. Cohen & Associates to evaluate your case.

 


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