Some employers, in an attempt to cut costs, use illegal tricks to avoid paying overtime.
As an employment attorney, I’ve seen lots of maneuvers, but below are the 10 most common tactics that I’ve seen employers use to cheat workers out of their hard-earned overtime pay:
1. Tell the worker that because he earns a salary, he isn’t entitled to overtime.
Many employers and most employees think that, once you’re paid on a salary basis, you lose your right to overtime pay. That isn’t the case. Unless you earn at least double the minimum wage for a full time employment, you are improperly exempt. Plus, you still must fit within one of the exemptions to the Fair Labor Standards Act or you must be paid for all your time.
2. Improperly classify the worker as an ‘independent contractor.’
Most people classified as independent contractors are really employees. If your company controls the time, place and manner of your work; if you can’t work for other companies, can’t hire your own assistants, answer to company work rules and the company sets your hours, the law would probably consider you an employee. If you signed an independent contractor agreement and think you’re misclassified, you are losing more than your overtime. You are also paying your company’s share of employment taxes.
3. Require workers to log in hours ‘off the clock.’
I’ve heard of employers that force employees to clock out for lunch, even if they work through lunch. Or they demand employees clock out and stay late. Maybe there’s no time clock at all, and you’re asked to sign a timesheet every week saying you worked 8 hours a day. This is your employer trying to put the lie on you. That way, if you do sue and you signed a paper or clocked in and out, they’ll claim you are lying about your overtime.
4. Combine non-exempt duties.
Even if you have an exempt job, some employers are trying to save money by cutting non-exempt jobs and giving those duties to exempt employees. Double the work, same pay. If your managerial job also requires you to be the receptionist, you are probably entitled to overtime pay for your non-exempt duties.
5. Expect the employees to be on-call.
If you have to jump anytime there’s an emergency and if you can’t use your “free” time freely, you may be entitled to be paid for your time on-call. If the company says you have to stay within a certain mileage from the office, that you must return calls within a short time (such that you can’t even go out and cut the grass or go to the movies if you want), or if the calls come in every 10 minutes, so that doing anything else is impossible, you are probably entitled to be paid overtime for your on-call time.
6. Give off-hours duties.
This is how it works: Employers require employees to arrive at the workplace several minutes before clocking in to put on a uniform or do other prep work, have before-hours or after-hours meetings, mandatory trainings, and other duties that are off the clock. If you’re in this situation, you are probably entitled to be paid for any time you are mandated to be present at work.
Truly voluntary training, such as going to an outside company to get a certification you want to increase your chances of promotion, even if the company pays for it, is probably not work time such that you’re entitled to be paid. If you’re told that failure to attend the training will result in some adverse consequences, it isn’t voluntary.
7. Expect the workers to do work from home.
If your job requires you to answer emails, respond to texts, or otherwise work from home after you leave, you are probably entitled to be paid for those hours. No, you can’t charge for time you took a shower, ate dinner, or watched “The Office,” no matter how much it reminds you of your own office, but you can charge for the time you actually spent working.
8. Tell workers to wait before clocking in.
If your employer requires you to come in, only to make you wait until they need you before you’re allowed to clock in, you’re probably entitled to be paid for your waiting time. If you aren’t told you can leave the premises, you can’t do anything else like go shopping or eat lunch, and you must be available when the work comes in, you are working. If you work in the copy room and play online checkers while waiting for the next job to come in, you’re probably entitled to be paid for that time.
9. Require workers to volunteer.
Many companies are involved in civic and charitable work, and that’s great. They may ask for volunteers to help with, say building houses for Habitat for Humanity. If you can volunteer or not, without consequences, then you’re working for free. But if your employer requires you to participate, supervises your work, and if you will suffer consequences for not “volunteering,” you are likely required to be paid.
10. Pretends not to know workers are toiling through lunch.
Your employer may look the other way if you work through lunch or after you clock out. That doesn’t excuse the employer from paying overtime. They may claim they didn’t know, but if the company suffers or permits you to work extra hours, you must be paid. That’s why many companies have written policies that require discipline, even termination, for failing to report all hours worked.
Our San Diego Overtime Attorney Can Explain Your Rights
If you need assistance in determining whether you are owed overtime in San Diego, feel free to contact our San Diego overtime Attorney. You may also contact our San Diego overtime lawyer online and confidentially discuss your situation.
http://www.sandiegoemploymentlawyer.net – 619.202.0264