Monday, January 31, 2011

Pennsylvania Overtime Lawyer Explains the Basic Rules - Exempt or Non-Exempt

Federal and State Laws Provide Overtime Rights

The Fair Labor Standards ("FLSA") governs the payment of overtime to employees.  In Pennsylvania (as in many states) there is a state law that protects you as well; it is known as the Pennsylvania Minimum Wage Act ("PMWA").

If You Punch a Time Clock, You Are Almost Always Eligible for Overtime
Companies Do Not Make Overtime Rules

Insofar as one's rights to overtime are defined by statutes, it follows that employers cannot change your legal rights via company policy, or by having you sign a contract saying you are not entitled to overtime.

Companies exist to make money; it is well known by employee rights lawyers (and the courts) that employers will sometimes mislead employees who are in fact entitled to overtime into believing that they are exempt from receiving overtime.

Do Not Be Fooled - Just Because You Are on Salary, Signed a Contract Saying You Are Exempt from Overtime, Defined as Ineligible for Overtime by Company Policy or Called an Independent Contractor, Does not Mean that You Cannot Receive Overtime
Do Not Put Blind Faith into Employer's Designation
of Whether You Are Exempt or Non-Exempt
There are 4 common ways that employers attempt to convince employees who are in fact entitled to overtime that they are not entitled to overtime:

1) Paying non-exempt employees a salary;

2) Having non-exempt employees sign agreements saying they are not eligible for overtime;

3) Publishing a company policy (mis)stating which types of employees are exempt from overtime; and,

4) misclassifying a "true employee" as an independent contractor.

These "tricks" do not work if you are in fact a non-exempt employee entitled to overtime.

What Are the Most Important Overtime Definitions for Employees?

Here are some buzzwords that you are likely to come across when considering your rights to overtime:

Exempt Employees: Employees who are NOT entitled to Overtime;

Non-Exempt Employees:  Employees who ARE entitled to Overtime;

Salaried Employees:  Employees who are paid an annual salary; although all employers treat salaried employees as exempt employees, that is not necessarily the case;

Exempt Professionals:  If you have an advanced degree that you use in your job you are an exempt employee; however, the mere fact that you have an advanced degree does not mean that you are not entitled to overtime.  For example, a person with a law degree who provides only paralegal services is still entitled to overtime;

Exempt Executives:  Generally, if you spend more than 50% of the time running the business or one of its departments, and have the authority to hire and fire employees, you are exempt from receiving overtime.  This is referred to as the Bona Fide Executive exemption;

Administrative Assistant Exemption:  if you perform office work that is DIRECTLY RELATED to management policies or general business policies, and exercise discretion and independent judgment on a regular basis, you are exempt from receiving overtime;

Outside Salesperson:  If you go on the road and sell products or services, and spend at least 80% of your time doing that, you are exempt from overtime under Pennsylvania law.  Obviously, if you spend less than 80% of your time doing outside sales, then you are entitled to overtime under Pennsylvania law. 

This is an Outside Sales Call
Handing Out Samples NOT a Sales Call

NOTE:  Many commissioned salespeople are not in fact exempt, despite being classified as exempt by their employer.  Typically, the rationale provided by the employer for exempting the employee from overtime is that the employee is deemed to be an outside sales person.  If you are paid on a commission, and are not in fact exempt, then you must, in addition to being paid overtime, be paid at least the minimum wage for all hours worked.

Computer Professionals:  Under federal law, computer professionals are not entitled to overtime. However, under Pennsylvania state law, many computer professionals are entitled to overtime.

Overtime Rules for Waiters and Waitresses - Pennsylvania Minimum Wage Laws

If you are waitstaff at a restaurant, you must be paid at least minimum wage for all hours worked. The minimum wage usually consists of a small hourly rate, plus your commissions.

A common ploy used by restaurant owners is to have servers come in early to set up, and to stay late to close down (and set up for the next day), paying them the same hourly rate for these tasks that they are paid while actually serving customers.  On slow days, when taking these hours into account, the wait staff often do not earn the minimum wage for all hours worked.  That is not legal.

Customers Tip for This
No Customer tips
I Signed an Agreement Saying I Am Not Entitled to Overtime - Is There Anything I Can Do?

Employers do not make overtime laws, and they cannot change those laws either via a company policy or by an agreement with employees.

You Cannot Waive Your Rights to Overtime
Via an Agreement
Remember, the key is WHAT YOU DO - not how you are classified by your employer.  If you think you are owed overtime, you may want to seek an attorney.

I am an Independent Contractor - Does That Mean I am Not Entitled to Overtime?

It is not unusual for a company to classify a worker as an independent contractor in order to avoid overtime obligations.  While it is true that independent contractors are not entitled to overtime, it is equally true that, it is a common practice to incorrectly classify workers as independent contractors when in fact they are employees.  Therefore, you should not abandon your rights to
overtime merely because you have been told you are an independent contractor, or because you agreed to work as an independent contractor.  The fact is, we've had many cases where independent contractors were eligible to recover overtime pay because they had been misclassified.

Double Damages May Be Awarded if Company Intentionally Failed to Pay Overtime

If you have to sue because you are owed overtime, you can win double damages - that is, double the amount of overtime to which you were entitled but were not paid - if you can prove the employer intentionally failed to pay you overtime.

Evidence that often suggest intentional, willful employer conduct can be found through "discovery" conducted during litigation.

Double Damages for Willful Conduct
I Complained That I Thought I Was Entitled to Overtime, and the Company Retaliated Against Me - Is Retaliation Against an Employee Demanding Overtime Against the Law?

State and federal laws covering Pennsylvania employees prohibit the termination of an employee in retaliation for his/her demand for overtime.

If you are fired/demoted/denied promotion because you requested/demanded overtime, and therefore suffer a wage loss, you can win double damages - that is twice the amount of wages you lost as a result of being terminated.  If in fact you you were also deprived of overtime to which you were entitled, you can recover that as well (and double the amount for intentional employer misconduct!).

How to Make a Protected Complaint Demanding Overtime Pay?

You must put it in writing.

You may do it internally; if you do that, make sure to send it to HR, with a copy to your manager.

If you do it through the Department of Labor, consider this: an employee is protected from retaliation only of the employer knows the identity of the employee making the complaint.

Think Carefully Before You Make an Anonymous Complaint
So, while you may be tempted to make an anonymous complaint, I can assure you of 2 things:

1)  If you are fired 2 weeks after the complaint is made, you will believe the company learned your identity and fired you thereafter; and,

2) The company will have a strong defense, saying "How could we have known it was Jane Doe who made the complaint: Whoever did it did so anonymously, and we never imagined it was Jane."

Philadelphia Contingent Fee Overtime Lawyer

If you have a claim either for overtime or unlawful retaliatory discharge due to your seeking overtime, we will handle your case on a CONTINGENT FEE basis.  That means we do not get paid unless you win.

Lawyer Prosecuting Overtime Claims for Pennsylvania Workers Since 1991
Philadelphia Area Employment Attorney Representing Employees

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania. 

John typically represents employees who need an employment lawyer in Philadelphia County, Chester County, Delaware County, Bucks County, Berks County, Lancaster County and Montgomery County.

Pennsylvania Overtime Attorney Provides Free Telephone Consultations

If you are looking for an employment lawyer, and live in Malvern, Wayne, King of Prussia, Downingtown, Glenside, Doylestown, Radnor, Newtown Square, Exton, Philadelphia, West Chester, Skippack, Langhorne, Haverford, Nether Providence, Broomall, Drexel Hill, Reading or any of their surrounding towns, feel free to send me an e-mail or give me a call.  I am always glad to spend some time with people via a free telephone consultation.

Need an Employment Labor Lawyer Near Philadelphia?

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues

Click Here to e-mail John directly.

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