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Are You Working Overtime in South Florida And Not Being Paid For It?

May 15, 2010

Because of the current recession, many employees have been laid off. Their co-workers, while happy to still have a job, have been forced to pick up the slack left after the former employee’s departure. As a result, millions of American workers are now doing “double-duty” at work and putting in lots of overtime. To add insult to injury, the Department of Labor estimates that approximately 70 percent of employers are not complying with the Fair Labor Standards Act (FLSA) which requires non-exempt workers to be paid overtime wages if they work more than a standard 40 hour work week.

Since 1937, the Fair Labor Standards Act (FLSA) has set the labor standards and guidelines for employers. The FLSA established 40 hours per week as the legal work week and requires overtime pay to be due to an employee for hours worked beyond the standard 40-hour work week. The FLSA also set the rate for overtime wages at 1.5 times the regular hourly wage for each hour worked beyond the 40 hour week.

Often, employers try to get around paying this overtime. They misclassify workers as exempt by giving them important-sounding job titles or by paying them salaries instead of hourly wages. The labors laws have gray areas, though, and there are certain salaried employees who are entitled to overtime pay and certain job titles that are non-exempt even though it sounds like the employee is in an executive or administrative position. A job title alone does not exempt a worker from overtime pay.

People in certain occupations are also routinely denied overtime pay even though they are entitled to it. As an example, nurses are generally thought of as exempt employees because they are considered “learned professionals.” But, licensed practical nurses and licensed vocational nurses who are paid hourly may be entitled to overtime pay. Additional violations can come up regarding breaks and meal times for nurses. Some employers and staffing agencies automatically deduct these breaks and meal times from a nurse’s weekly hours even if he or she is too busy to take a break, but many courts have ruled that these policies are also in violation of the FLSA.

To qualify for the learned professional employee exemption, all of the following tests must be met:

• The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;

• The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;

• The advanced knowledge must be in a field of science or learning; and

• The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

Registered nurses who are paid on an hourly basis should receive overtime pay. However, registered nurses who are registered by the appropriate State examining board generally meet the duties requirements for the learned professional exemption, and if paid on a salary basis of at least $455 per week, may be classified as exempt.

Are you owed overtime pay? You are qualified to collect overtime in South Florida if you work more than forty hours in a week, even if:

  • You are paid a salary
  • You are a tipped employee
  • Your job title is manager, but you do very little managerial wo
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