Common Questions About Your Rights

Although each client is provided with individualized representation, the attorneys at OSMAN & SMAY LLP frequently are asked similar questions. Below are many questions and answers to commonly recurring issues thatoff the attorneys at OSMAN & SMAY LLP frequently encounter. If you have a specific question about a job you have worked within the past three (3) years, CONTACT US today to discuss your individual circumstances.

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

    You are entitled to any unpaid overtime or minimum wages that your employer failed to pay you for either the past two or three years. Additionally, federal law generally requires that your employer pay liquidated damages (i.e., double damages) in the amount of your unpaid wages and any expenses and attorney fees.

  2. How long do I have to file a claim?

    The Fair Labor Standards Act permits employees to seek recovery of overtime and minimum wages earned at jobs worked within the past two years, or three years in a case of a willful violation of the law.

    Only by filing a Claim and a Consent to Join can you protect your rights. With each day that passes, your right to unpaid compensation may be reduced or eliminated. Therefore, it is important to contact a wage lawyer immediately to ensure your rights are not lost. CONTACT US today if you believe that you are owed wages by an employer.

  3. Can my employer fire me or take other negative actions against me for attempting to enforce my rights?

    No. The Fair Labor Standards Act provides that an employer may not retaliate against an employee who seeks to protect his or her statutory rights to minimum or overtime wages. If an employer is found guilty of unlawfully retaliating against you, they may be liable for damages for lost wages and other relief.

  4. What if I’m afraid that my employer will find out about me talking to an attorney?

    The attorneys at OSMAN & SMAY LLP keep all communication with our clients in strict confidence. Until you authorize our firm to file a Complaint in court on your behalf, no one will know that you have talked to us.

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

    Many people believe that simply being paid a salary causes an employee to become “exempt” from the Federal law’s overtime requirements. The truth is that simply being paid a salary alone does not mean you are not entitled to overtime. Federal law requires that your actual job responsibilities and functions determine whether or not you are entitled to overtime compensation. Exemptions to the overtime requirements are often complex and it is not uncommon for employers to misinform its employees and improperly pay their employees. CONTACT US today to discuss your situation if you were paid a salary at any time within the past three (3) years.

  6. What if I’ve been paid the same hourly rate for all hours worked, even when I work more than forty hours in a week?

    Under the Fair Labor Standards Act, covered employees are entitled to receive time and one-half of their regular rate for all hours worked in excess of forty in a workweek. If you were paid the same hourly rate for all hours worked, even those in excess of forty in a workweek, you may be owed additional compensation. CONTACT US today for a free consultation about your circumstances.

  7. What if my boss told me I am “exempt” from overtime?

    The FLSA’s requirements are complex and often misunderstood. Your boss’ interpretation of the federal law is not definitive. Determination of whether or not you are entitled to overtime will likely depend upon analysis of your individual job duties by a federal judge. If you were told you were “exempt,” but wonder whether or not you are entitled to overtime, CONTACT US today for a free consultation.

  8. What if I’m a supervisor or manager?

    Your job title alone cannot determine whether or not you are entitled to overtime compensation. Employers often give employees job titles indicating supervisory or management authority and do not pay overtime compensation, and use that as the reason not to pay overtime. The key to determining whether or not you are entitled to overtime is a thorough analysis of you primary job duties. If you have questions about whether your job duties make you exempt from overtime, CONTACT US for a free consultation.

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

    Many employers improperly classify employees as “independent contractors,” who are not entitled to the protections of the FLSA. Your employer’s decision to call you an “independent contractor” does not mean that you are one. That decision is ultimately for a federal judge to make and depends on the economic realities of your working relationship including:

    • Does your employer determine your job duties?
    • Does your employer control the hours you work and your daily work schedule?
    • Does your employer provide you with the tools you need to perform your work, or do you have to purchase these items?
    • Do you work at your employer’s place of business or job site every day?
    • Do you perform similar work for other employers?

    If you have been classified as an independent contractor, but have questions about whether or not that classification was correct, CONTACT US today for a free consultation.

  10. What if my employer issued me a Form 1099 rather than a Form W-2 for taxes?

    Your employer may tell you that you are an “independent contractor” for whom he or she does not have to pay payroll taxes. Your employer’s decision may not always be correct, because whether or not you are an “employee” or an “independent contractor” depends on the facts of the working relationship, rather than by a label applied by your employer. If you were improperly classified as an independent contractor, you may be entitled to overtime compensation for all hours worked in excess of forty in a workweek.

  11. What if I worked “off-the-clock?”

    If you worked off the clock and your employer accepted the benefits of your work and had reason to know that you were working off-the-clock, you may be entitled to unpaid overtime wages. If you have worked off-the-clock the attorneys at OSMAN & SMAY LLP may be able to help you recover your unpaid wages. Off-the-clock work could consist of staying late after your normal shift but being forced to clock out, doing job-related paperwork at home, making or responding to job-related telephone calls or working through meal periods or breaks. If you have a question about whether or not you are entitled to unpaid compensation, CONTACT US today for a free consultation.

  12. What if my employer didn’t know I worked off-the-clock?

    Your employer is generally required to properly compensate you if they accept the benefits of your work and had reason to know that you would be working. The Fair Labor Standards Act requires employers to maintain detailed time records of their employees work each week, so it is their responsibility to keep track of the actual time that you worked.

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

    Under the Federal law, employers may not accept the benefits of your work without properly compensating you for all overtime hours worked. This means that employers must pay you for the hours that you worked regardless of whether or not those hours were approved in advance.

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

    The Fair Labor Standards Act requires employers to maintain detailed time records of their employees. If employers fail to maintain such records, the employee is entitled to prove the amount of hours worked based on a good faith and realistic estimate of the time worked. If the employer failed to keep up with its record keeping requirements, the employer is left to challenge whether the employee’s assessment of the number of hours worked was realistic. If you are honest about the number of hours that you worked, the attorneys at OSMAN & SMAY LLP may be able to help you recover unpaid overtime wages for the past three (3) years.

  15. What is considered “work time?”

    Generally, any activity performed for the benefit of an employer is considered compensable “work time” under the law, if the employer had reason to know the work was being performed and accepts the benefits of your labors without prohibiting you from performing the work.

  16. What is my overtime rate?

    The Fair Labor Standards Act requires employers to pay its employees one and one-half times their “regular rate” as their “overtime rate.” Generally, your “regular rate” is calculated by dividing your total weekly wages by the total number of hours worked in a particular workweek. For employees who are paid solely by the hour, their “regular rate” will be their hourly rate. However, where an employee receives other forms of compensation, such as a salary, commissions, bonuses, incentive pay, piece rate or a day rate, those additional forms of compensation must be included in determining the “regular rate.” Your “regular rate” may be higher than you think!

    If you have been paid compensation in addition to an hourly rate or have questions about calculating your overtime rate, CONTACT US today for a free consultation.

  17. If I am paid a piece rate, day rate or other amount paid by the task or day, am I entitled to overtime pay?

    Under the Fair Labor Standards Act, all non-exempt employees are entitled to receive overtime compensation in the amount of time and one-half for all hours worked in excess of forty in a workweek regardless of their method of payment.

  18. Is my employer permitted to make deductions from my hours for meal/lunch breaks even if I do not actually take these breaks?

    No. You are entitled to be compensated for all work performed for the benefit of your employer that the employer had reason to know you performed and accepted without prohibiting you from performing the work. If you have worked through your breaks or performed work from home without compensation, CONTACT US for a free consultation.

  19. What if I travel between job sites, but am only paid for the time I actually spend on each job site?

    Employers are generally required to pay employees for time spent traveling between job sites during the workday.

  20. What if I travel for work in my own vehicle?

    Although time spent traveling to and from work at the beginning or end of your work day is normally not compensable, travel time spent after arriving at work or after performing your first employer-required activity is generally compensable. For example, if you are required to do an errand for your employer on your way home from work, you are entitled to be compensated until you finish that errand on your way home from work.
    If you have questions about whether or not you are being properly compensated for all hours work on behalf of your employer, CONTACT US today for a free consultation.

  21. Can my employer combine my hours worked in different weeks to avoid paying overtime worked in a week?

    No. Overtime is determined on a workweek basis. An employee’s workweek is a fixed and recurring period of seven consecutive twenty-four hour periods. Averaging hours over the pay period is not permitted under the Fair Labor Standards Act. Therefore, if you are paid every other week and work 50 hours in the first week and 30 hours in the second week, you are entitled to overtime compensation for 10 hours even though you only worked an average of 40 hours per week.

  22. What if I get “comp time” or compensatory time off instead of overtime wages?

    Generally, only government employers may pay “comp time” or compensatory time off in lieu of overtime wages for hours worked over forty in a workweek. Even if your government employer is permitted to pay “comp time,” such compensatory time off must still be paid one and one-half hours of comp time for each hour of overtime worked. For most employers who are not permitted to pay comp time, the payment of comp time does not alleviate the requirement to pay overtime compensation. So even if you have been paid comp time, you may still be entitled to overtime compensation for any workweek in the past three years where you worked more than forty hours.

  23. May I recover overtime wages if I accepted wages in cash?

    Yes, you are entitled to overtime compensation in the amount of one and one-half times your regular rate of pay. If your employer pays you in cash at “straight time” and does not pay you overtime, you are still entitled to the additional “half time” wages you were not paid.

  24. What if I am paid tips?

    Even tipped employees such as waiters, servers and delivery drivers are entitled to overtime compensation for hours worked in excess of forty hours in a workweek. Determining the overtime rate may be difficult and many employers get them wrong, so CONTACT US today for a free consultation.

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

    Generally, employees cannot waive their statutory rights to receive minimum wage or overtime by signing a severance agreement or other contract with their employer. Only waivers signed off by the U.S. Department of Labor or the Courts can fully waive your rights to receive overtime under the federal law.

  26. 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 rights to receive minimum or overtime wages under the federal law are not generally affected by your legal status as a citizen.

  27. How much will it cost to protect my rights?

    The attorneys at OSMAN & SMAY LLP normally represent employees on a contingent basis, meaning that unless we are able to recover money on your behalf, OSMAN & SMAY LLP does not charge fees or costs. Additionally, the Fair Labor Standards Act requires employers who violate the law to pay for the reasonable attorney fees and costs of the plaintiff incurred in the lawsuit.