Unfortunately, many employers often fail to pay their employees the overtime compensation they are owed. Depending on your specific circumstances, you may be entitled to unpaid overtime. If you are, you have a right under federal and state law to collect overtime payments wrongfully withheld from you.

There are numerous ways that employers avoid paying overtime wages. For example, your employer might pay you at your regular hourly rate for all of the hours you worked over 40 during the workweek. Other instances might include your employer compensating you on a fluctuating workweek basis (where your work hours may vary from week to week and you are paid the same flat amount for each workweek) or by paying you a day rate for each workday and not paying you overtime compensation for hours worked in excess of 40 during the workweek.

Employers also avoid paying overtime by offering time off or “comp time” in lieu of paying overtime, but that “comp time” is provided in a different workweek. These are only a few examples of how employers violate the overtime requirements of the wage & hour laws.

If you believe that you are owed compensation for overtime hours, call the employment law professionals at GardnerFrankhouser, LLP to discuss the facts of your specific situation and learn if you can recover overtime pay under state and federal law. With years of experience as employment attorneys and as former human resources executives, Lew Gardner and Rob Frankhouser can offer honest and practical advice regarding whether you may be entitled to recover compensation for unpaid overtime.

Our initial consultation is free. Call us at 412-903-7720, or contact us by email to tell us about your situation.

Do I Have an Unpaid Overtime Claim Against My Employer?

Pennsylvania and federal employment laws require that employers pay certain non-exempt workers one and a half times their hourly rate for all hours worked over 40 hours in one week. For example, if you get $10 an hour, and you work 45 hours in one week, then you should be paid $400 in regular pay ($10 x 40 hours) and $75 in overtime pay ($15 x 5 hours) – for a total of $475 in wages.

You might have a claim against your employer for overtime pay if you did not receive the correct amount of overtime pay.  You may also have a claim for unpaid overtime in the following situations:

  • Working “Off the Clock.” Your employer must compensate you for all of the time you work for them, regardless of when that time is worked. For example, if you started work an hour early, but did not “punch in” until your regular start time, your employer still must pay you for the extra hour you worked.

    In addition, if you work during your lunch break, then your employer must compensate you for that time as well, even if you “punched out” for lunch. In the same manner, your employer must pay you for the hours you work after you “punched out” at the end of the day (including answering phone calls or emails in the evening at home). Further, if these “off the clock” hours bring your total hours for the week above 40, then your employer must compensate you with overtime pay for those hours over 40.
  • Per Diem Compensation. Per diem, or “a payment per day,” is a form of payment employers make to their employees to reimburse them for expenses, such as lodging, meals, and incidental business-related expenses. If you are receiving a per diem payment, you might be entitled to collect overtime pay.

    For instance, if you receive a per diem payment but  don’t incur any out-of-pocket expenses, or if the per diem amount far exceeds your actual out-of-pocket expenses, these per diem payments should be included in your hourly or daily rate. If you are in this situation and you receive overtime compensation, then you are likely entitled to additional overtime pay.
  • Incentive & Bonus Payments. Any non-discretionary incentive or bonus payments should be included in the calculation of overtime payments that you receive. A non-discretionary bonus payment is a bonus payment that you receive because of your productivity, safety or attendance record, for being “on-call” or  some other similar reason.  When you receive a bonus or incentive payment covering a particular time period (i.e., weekly, monthly, quarterly, or annually), that bonus payment must be included in your regular rate for purpose of calculating overtime compensation that is due to you.

    Including a bonus or incentive payment in your regular rate increases your hourly rate which also increases the amount of overtime pay that your employer owes you.

    For example, let’s say that you received a $300 bonus for meeting a production goal to satisfy a top customer’s order in a particular workweek.  Your regular rate is $20.00 per hour and during the week in question, you worked 50 hours.  Since you worked 10 hours of overtime, the bonus must be included in your regular rate.  Here is the calculation:
    • $20.00 (regular rate per hour) x 50 hours = $1,000 (total compensation for straight time)
    • $1,000 + $300 (production bonus) = $1,300 (total compensation)
    • $1,300 divided by 50 hours = $26.00 (new regular rate)
    • $26.00 x .5 = $13.00 (half time premium rate)
    • $13.00 x 50 overtime hours = $650 (overtime pay due)

If your employer doesn’t include this $300 bonus in your regular rate, you would receive $150 less in overtime pay

  • Day Rate. Employers pay some workers a flat rate for each day they work, regardless of the number of hours they work each day. This is known as a “day rate.”  Employees who work on a day rate basis, must be paid overtime for all hours worked over 40 in a workweek. Under federal law, day rate employees are entitled to half-time for all overtime hours worked.

    For example, if your day rate is $325 and you work six days in one week, your weekly pay would be $1,950. If you worked 55 hours in that week, you are entitled to overtime for the 15 additional hours you worked at one-half of your hourly rate.

    Here is how you calculate the overtime pay that you are due for the week in question:
    • $1,950 (your day rate multiplied by 6 days) divided 55 hours = $35.45 (your hourly rate)
    • $35.45 multiplied by .5 = $17.72 (your overtime rate)
    • $17.72 multiplied by 15 hours = $265.90 in overtime due for the week in question.
  • “On-Call” Employees. There are many types of “on-call” arrangements.  If you are “on-call.” this means that you must be available to respond to a call or report to work when your employer needs your services.

    If you are “on-call,” but are free to go about your daily activities until your employer calls you,  that time is generally not compensable (this is called “waiting to be engaged”).  If, however, you are required to remain in one location and wait for a call or work assignment, then this time is likely compensable (this is called “engaged to wait”).

    For example, let’s say you  work 4 hours per day from home as a customer service representative.. In addition, however,  you must remain in your home for another 4 hours waiting for your employer to call you to perform possible additional work, if necessary.

    In that situation, your employer must compensate you for your “on-call” time because you are “engaged to wait”. This “engaged to wait” time must also be included in your work hours for the week for overtime calculation purposes.
  • The “Fluctuating Workweek.” Employers pay some non-exempt employees a fixed, pre-determined salary for each week they work regardless of the number of hours they work in that workweek. This pay arrangement is known as the “fluctuating workweek (“FWW”).”

    If you are a non-exempt salaried employee whose hours fluctuate from week to week,  you are entitled under federal and state law to overtime compensation for any hours worked beyond 40 in a workweek.  Federal and Pennsylvania law differ on how your overtime should be calculated.  Under Pennsylvania law, your employer is required to pay you at a rate of one and one-half times your regular rate for each hour worked over 40 in the work week.

    By way of example, let’s assume that you are paid a fixed salary for each workweek of $2,500 and that you worked 60 hours during the week in question.  Here is how your overtime should be calculated:
    • $2,500 (your weekly salary) divided by 60 hours = $41.67 (your hourly rate for the week)
    • $41.67 multiplied by 1.5 = $62.50 (your overtime rate)
    • $62.50 multiplied by 20 hours = $1,250 in overtime compensation.

Under federal law, you are only entitled to $416.70 in overtime compensation.  Pennsylvania law provides you with an additional $833.30 in overtime compensation.

  • Misclassification of Employees as Exempt From Overtime Pay

    Whether you are exempt from overtime pay requires a close examination of how you are paid, how much you are paid, and the job duties that you perform.  Here are a few examples where employees might be misclassified as exempt from overtime:
  • Managers and Supervisors.  Employees who are classified as managers or supervisors are sometimes misclassified as exempt from overtime.  In order to be exempt from overtime: (i) you must be paid a salary of at least $684 per week; (ii) be paid on a “salary basis” (i.e., the same amount each week regardless of the number of hours that you work); and (iii) perform management duties such as directing the work of other employees, making hiring and firing decisions, training, setting payrates and work schedules, etc.
  • Independent Contractors. Independent contractors are not entitled to overtime pay. However, many employers wrongly classify individuals as independent contractors. Numerous factors are considered when determining whether an individual is misclassified as an independent contractor.  Some of these factors include: do you provide your own equipment? Do you set your own work hours? do you have a significant investment in your business? do you have an opportunity for profit or loss?; how long have you worked for the current company? do you work for other companies? If your answer is “No” to at least several of these questions, there is a good chance you misclassified as an “independent contractor”.
  • Highly Compensated Employee Exemption. Under federal law, if you are paid $107,432 or more annually, perform non-manual or office work and perform at least one of the exempt duties of an executive, administrative or professional employee, then you are considered exempt from overtime.

    Under Pennsylvania law, however, the highly compensated employee exemption does not exist.  If you work in Pennsylvania and your employee classifies as exempt from overtime under the ‘highly compensated employee” exemption, you are likely entitled to overtime compensation for anytime that you work over 40 hours in a workweek.

If you any of these situations describe your situation, you should contact us so that we can review your situation.

Talk To An Experienced Wage and Hour Lawyer Today

If you believe that your employer has not compensated you properly for the for overtime compensation that you are entitled to, contact us today for your free consultation. Call us at 412-903-7720 or ask for a free consultation by clicking here.

Talk to an experienced employment lawyer today!

We focus on helping workers and employees across the state of Pennsylvania. Our lawyers have particular expertise in wage-hour law, executive employment contracts and compensation, non-compete agreements, sexual harassment, unlawful retaliation, theft of trade secrets, whistleblowing, and wrongful termination.

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