Every year thousands of employees across the country work long hours without ever getting paid overtime. In fact, according to the Wage and Hour Division of the U.S. Department of Labor, in 2019, over 11,000 claims were made under the federal law (FLSA) for unpaid overtime wages. This amounted to more than $180 million in overtime back pay that these workers deserved. Unfortunately, many employers repeatedly and illegally withhold overtime pay from their employees.
Problematic Industries
There are certain industries where illegally withholding overtime occurs more often than others. Some of these industries with high rates of failing to pay employees overtime include:
- Food Services
- Retail
- Construction
- Cleaning and Car Washing Services
- Health Care
- Hotels
- Agriculture
- Child Care Services
- Guard Services
- Janitorial Services
- Temp Workers
- Manufacturing
This certainly isn’t an exhaustive list, as overtime violations can occur in any industry, and it doesn’t just happen in small companies. From well-known companies in the food services industry like IHOP and Subway, to large hotel chains like Holiday in Express and Days Inn, and even retail giant Walmart, large corporations throughout the country have been found violating overtime laws and have been investigated by the Department of Labor and faced lawsuits as a result. Anytime a company fails to pay an employee for the overtime they deserve, it is wage stealing and is illegal, no matter how big or famous the company.
Workers who work in any of these industries need to be aware that they may find themselves in a situation where their employer has failed to pay them the overtime they deserve. For example, in just one year, the California Bureau of Field Enforcement conducted investigations into companies in these industries and discovered California workers were owed over $8 million in unpaid overtime wages. In the California car washing industry alone, workers were owed over $100,000 in unpaid overtime wages.
Why Am I Not Getting Paid Overtime?
If you work in one of these industries, and haven’t been paid overtime, you may be wondering why. There are several reasons why an employer fails to pay overtime including:
- Miscalculating hours worked — Under federal law, employees protected by the Fair Labor Standards Act have to be paid overtime pay (time and a half) for any hours worked over 40 hours in a week. Many states have additional laws and requirements for when an employee is paid overtime and how much. Miscalculating hours can happen if the employer does not understand state overtime requirements, rounds down on hours worked, commits a clerical error, or does not count certain time as “working hours,” even if it should be;
- Misclassifying employees — Not every employee out there can get overtime pay. If the employee is exempt from the Fair Labor Standards Act, overtime is not required. This typically applies to professional, salaried employees. An employer can accidentally or intentionally misclassify an employee as exempt instead of non-exempt to avoid paying overtime; an employer may also label a worker as an independent contractor instead of an employee to avoid paying overtime;
- Intentionally (and illegally!) not paying overtime — Some employers in these industries fail to pay overtime and do so on purpose. Intentionally and knowingly failing to pay overtime is wage stealing and is illegal.
If you haven’t been paid overtime for any of these reasons, you should know that you have options. You can take action by bringing a claim against your employer to get the overtime back pay you deserve.
How to Get Your Overtime Pay
If your employer has illegally failed to pay your earned overtime, there are options. As a non-exempt, hourly employee, you are protected by state and federal labor laws, and deserve to be paid for all the hours you work, including overtime. When you haven’t been paid your overtime wages, you can bring a claim against your employer. Bringing an overtime wage claim can be confusing, so it can be helpful to talk to an employment law attorney at Drew Lewis, PC if you have any questions.
There are a couple of different options when it comes to bringing a claim against your employer to get your overtime back pay. You can:
- File a wage claim with the state or federal agency responsible for enforcing labor laws – One way to obtain your unpaid overtime is to file a claim on the federal level with the Wage and Hour Division or with your state agency that enforces overtime laws. The agency will then conduct an investigation into your claim, hold a hearing to review the evidence, and then make a finding.
or
- Bring a civil lawsuit against your employer – You can also bring a lawsuit through the court system against your employer when they illegally withhold your overtime. The suit will go through the court and to trial if necessary, and if you are successful, you can be awarded your wages and other compensation (damages) allowed under the law.
If you are working in an industry that has problems with illegally withholding overtime pay, be aware and remember that you have rights–you deserve to be paid for your overtime, so do not hesitate to take action to get the overtime pay you are entitled to.