Question

Should I be getting overtime pay at my job in Ohio?

Brian D. Spitz

Answered by:
Brian D. Spitz

Located in Beachwood, OH
The Spitz Law Firm, LLC

Brian D. Spitz - Employment Litigation - Super Lawyers

Answered by: Brian D. Spitz

The Spitz Law Firm, LLC
Beachwood, OH
Phone: 866-797-6040
Fax: 216-291-5744

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Answer

The vast majority of workers in Ohio are covered under federal and state laws that require employers to pay overtime wages at time and a half for hours worked over 40 hours in a designated work week. This means that after an employee works more than 40 hours in a given work week, the company that he or she works for must pay that employee 150 percent of your regular rate of pay, which not only includes your hourly wage, but also and all compensation you receive as part of your job. This includes wages, commissions, performance-based bonuses, and shift differentials that your employer pays you.

Wage laws are the most complex employment law and are often confused by many employers and employees, resulting in employees not getting what they are supposed to be paid. Indeed, when companies are unsure of wage laws, the boss or manager often decides to error on the side of not paying employees their lawfully earned wages. Because of these often confusing and always complicated wage and hour law, it is critically important to get a free initial consultation to determine whether you have been the victim of wage theft.

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As a salaried employee, am I entitled to overtime pay?

Maybe. Again, these wage and hour laws are complex. However, most workers and employers wrongly believe that if an employee is paid a salary, or a set amount paid per week, pay period, or year, then the employer can require that employee to work as many hours as needed without being paid overtime wages at all, much less at time and a half. This is not always true. Under the federal Fair Labor Standards Act (FLSA) and comparable Ohio laws, there are several factors that determine whether an employee is entitled to overtime pay and the overtime premium – only one of those many factors is whether the employee is paid a salary. Thus, employees who are paid hourly, and not by salary, are almost always entitled to overtime pay, but salaried employees still must meet other considerations before being considered and “exempt” employee who does not get overtime pay. For example, employees that are paid a so-called salary of less than $455 per week or have wages deducted when then miss a day or are late for week are still “non-exempt” employees who are entitled to be paid time and half for overtime hours over 40 hours per week.

Because there are so many different factors that must be properly considered in determining whether an employee is “exempt” or “non-exempt” for overtime pay, the best thing that you can do is sit down with one of our Ohio employment attorneys during a free initial consultation to determine whether you have lost pay or suffered from wage theft.

What time should be included to calculate the hours that I worked?

All of it. Any time that you are working, you need to be paid for that time. If your boss or manager requires you to do any work before punching in or punching out, you need to be paid for that time. This includes getting into special protective gear, prepping machinery, turning on computers or equipment, “pre-work” meetings, after hours training, or driving from the shop to a work site. Additionally, many employers will impermissibly automatically deduct time for lunch or breaks even if you don’t take a break. Employers must pay you for all breaks that are less than 20 minutes, including bathroom and smoke breaks. If you eat lunch at your desk or during a training session, your employer must pay you for that time. This means that if you are scheduled to work 40 hours per week, but that does not include lunches that you work through or any of the above activities, you have worked over 40 hours and are entitled to overtime pay. This is true even if you boss has a so-called no eating lunch at your desk policy, but knows that you are doing it. Indeed, your employer must pay overtime hours even if it has a policy that prohibits working overtime, but expects you to get the work done anyways.

While an extra 15 minutes per day may not seem like a lot, that adds up to 3,900 minutes per year – or 65 hours per year at time and a half. This means that for just 15 minutes of overtime per day you may be entitled to almost three weeks’ worth of pay, and our lawyers may be able to go back as long as three years. Of course, if you are improperly having an hour of lunch time per day or being wrongly forced to work 60 hours per week and wrongly being paid only a salary or on a piece-rate basis, your damages would be much higher. Again, the calculation of work hours is much more complex and case specific than can be explained in a blub answer on a website question and is another reason it is best for you to get a free initial consultation with one of our wage theft lawyers.

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If I am an independent contractor, am I entitled to overtime pay?

The problem with this wage question is the assumption that any worker is really an independent contractor. While a worker may be paid as independent contractor, have a contract that says he or she is an independent contractor, and taxed as an independent contractor, that worker still may not be an independent contractor as a matter of law. The FLSA and Ohio wage laws looks beyond the labels given to the workers to determine whether you are an employee or an independent contractor because companies have significant financial motivation to misclassify employees as independent contractors. Specifically, workers who are truly independent contracts are not required to be paid overtime (or even minimum wage).

Because there are a multitude of fact-specific factors that must be considered in evaluating whether you are an employee or independent contract, our wage attorneys are in the best position to help you determine if you are entitled to overtime and other damages based on a misclassification. Some of the factors that point to you being an employee instead of an independent contractor include that your employer has the right to direct and control your work (even if the boss does not do so); you are paid on an hourly, weekly, or monthly basis and cannot realize significant profit or loss; you use equipment, tools, and materials provided by the employer; you wear a uniform or present yourself to outsiders as part of the company; your employer sets your schedule; the company provides training, either formally or informally; you receive benefits, such as vacation pay, health insurance, or professional insurance liability coverage; you have an ongoing work relationship as opposed to a per job or project basis; and you not allowed to take jobs on your own without permission. There are other factors and not all of these factors need be present.

How do I prove an overtime claim if I did not keep track of my hours?

Good news. Under the FLSA and Ohio wage and hour laws, the employer is responsible for keeping track of all the time worked by its employees. To that end, your boss or manager cannot avoid paying you overtime by blaming you for not keeping track of your time.

That being said, if your job is not keeping track of your time, it is a good idea to keep track of it on your own. Even if you have not tracked or recorded your time for the entire period in dispute - maybe up to the last three years, keeping it for some of that period will allow your wage theft lawyer to argue that what you did keep track of is a typical example of the overtime hours that you previously worked. Additionally, emails or phone logs that show that you were working before or after scheduled work shifts can be used as evidence to support your overtime wage claim.

In the end, if your employer did not keep track of your time, you can still prove your claim for overtime wages through just your own testimony of what you typically worked. Therefore, even if you have no documents at all, you should still contact an Ohio wage theft attorney for a free evaluation of your potential claim and to find out how much money you may be owed.

There are significant differences in being classified as an “independent contractor” rather than an “employee.” One important difference is that The Fair Labor Standards Act the federal law that requires minimum wage and overtime pay only applies to employees. Independent contractors are not covered. This means that independent contractors do not have to be paid time and a half for working overtime. As a result, employers have a significant economic incentive to misclassify employees as independent contractors, and often do in an attempt to avoid paying overtime wages. Additionally, employers must pay social security, Medicare, and unemployment taxes on wages of employees. Independent contractors are individually responsible for paying income tax and self-employment taxes. 

How do I find out if I am owed overtime pay? 

Unfortunately, it can be unproductive to ask your HR department or manager about overtime pay. Some companies try to avoid informing their employees about their rights in order to save the company money. This is illegal, and your situation needs to be discussed with an attorney. 

If you suspect you have rights to overtime pay, or see other employees receive overtime when you do not, you deserve answers. Your best option is to schedule a free consultation with our national wage and hour law attorneys to discuss your questions, and to see how we can help.

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This answer is provided by employment attorney Brian D. Spitz, who has been recognize in Newsweek as one of the Top 20 Leaders in Employment Law in the United States and a 30 Top Nationwide Attorneys; and is a member of the Million Dollar Advocates Forum, among other recognitions. Brian is the managing partner of The Spitz Law Firm, LLC is one of the largest strictly employee-side law firms in the United States, with offices in Cleveland, Columbus, Cincinnati, Toledo, Akron, and Youngstown, Ohio.

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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