Overtime pay on hourly status
September 17, 2015 7:01 PM   Subscribe

Does my former employer owe me for overtime pay? I frequently worked more than 40 hours a week for one employer, but he claimed that some hours were from one pocket for one service, and a different pocket for a different service.

I am in the United States. The particular state I am in seems to have all of their labor laws default to the federal requirements. So there are no local or state considerations to answering this question.

You are not my lawyer, even if you are a lawyer, I fully understand that.

My previous employer, of 8 years, paid me on a strictly hourly basis. I was never salaried.

Occasionally, I would earn overtime. He paid me twice a month, and based overtime on the bi-monthly pay period. So maybe I'd work 30 hours one week, then 50 the next, which averaged out to 80 for the pay period, so I didn't get any overtime. This doesn't quite seem right, given that U.S. labor law is based almost exclusively on a 40-hour work week. Also, it was his discretion on when the hours of labor were to occur.

Additionally, I worked two different jobs. I had my regular, full-time job that occasionally paid overtime. Then I had a "contractor" job (even though the schedule was entirely under his control), that would earn me 3 to 6 hours a week. Even if I worked a 40 hour week, or an 80-hour bi-month, anything I worked on this "contractor" side was never considered overtime. There are many many weeks in this 8-year history, when my regular work week was 40 hours, and the extra "contractor" job was 6 more hours, and I didn't get paid any overtime. I do understand that, had I been a salaried employee, this extra task would not be open for additional compensation. However, I always was on an hourly basis. My hourly basis is extensively documented, down to an accuracy of quarter hours. From day one.

The former employer always told me that the different pays came out of different pockets, for different services.

Do I have a case for going after overtime pay for (a) the bi-monthly versus weekly discrepancies, or (b) the "contractor" time?
posted by yesster to Law & Government (13 answers total) 1 user marked this as a favorite
A Dept of Labor factsheet says, " Averaging of hours over two or more weeks is not permitted."
posted by Radiophonic Oddity at 7:10 PM on September 17, 2015 [6 favorites]

Response by poster: If it matters -- the paychecks were always written from the same, sole, single business checking account, regardless of whether it was my "regular" job or the "contractor" work.
posted by yesster at 7:10 PM on September 17, 2015

He told you that the pay came out of different pockets, but were the paychecks written from the same company? If so, it sounds like his "different pockets" was not legitimate.
posted by alms at 7:11 PM on September 17, 2015 [7 favorites]

Response by poster: Thank you for that valuable link, Radiophonic Oddity. Please forgive my ignorance -- has that been superseded, or is it still in effect?
posted by yesster at 7:24 PM on September 17, 2015

Are you saying that you were hourly because you had to record your time? You can still be salaried and have to fill out a time card. It all depends on the classification of your position, whether you're exempt from overtime or not.

Do you have records of the overtime you worked?
posted by hwyengr at 7:37 PM on September 17, 2015

You'd probably have to get a lawyer to find out if you have a case worth pursuing. Were the "contractor" duties at all distinct from the "employee" duties (ex. - come in and work late to clean the office or cut the grass, when you work as a CSR as an employee)? Assuming NOT, this makes the contractor dodge pretty transparent. As you have alluded to the idea that the hours were under his control, that is one of the major tests as to whether you're really a contractor or not.

Were you required to work a short week because he thought that making you do so would even out the pay period and avoid OT, or was the work variable? The former scenario might make it a bit more transparent as to his intent.

I've dealt with payroll issues as an employer, but have no first-hand experience either trying to cheat people or being cheated on wages. :-) IANAL, but if it's like most situations, the value of the case is kind of based on two factors - how much can you recover, and how strong is the case? Again, it's going to be something best determined by a lawyer, but odds are they'd give you a no-cost initial consultation to decide. 8 years of OT could add up to a lot...
posted by randomkeystrike at 7:39 PM on September 17, 2015 [1 favorite]

The averaging thing has been covered, but the other part is if you were actually a contractor or not. It sounds very, very likely that you were incorrectly classed as a contractor, but there really aren't enough details here for anyone to be totally certain. There are plenty of fact sheets out there on this subject. The pockets discussion is not really relevant, as long as you were paid by the same business, then it only matters if you were a contractor or not.

There are also significant tax implications for your employer and you if it is determined that you were an employee rather than a contractor. I think you should consult a lawyer.
posted by ssg at 7:39 PM on September 17, 2015

Response by poster: I was hourly because my pay was based on the hours I worked. My paycheck varied solely on the basis of labor hours. My records are very extensive.
posted by yesster at 7:40 PM on September 17, 2015

The rule for for counting hours within a 7-day period rather than combining multiple weeks into a pay period to avoid overtime is still current law, valid in all 50 states. Additionally, overtime hours are counted for all hours worked by the same employer, even if it's technically at different jobs. Whether or not you qualified as a contractor is not clear, but just because they called you a contractor doesn't make you one.

You sound like you might have a great claim to make against your employer for back wages. Who knows how many other people he's screwed over this way. You should contact a lawyer about this, they'll be able to help you get started. Good luck!
posted by skewed at 7:43 PM on September 17, 2015 [8 favorites]

I've been in this situation. I didn't lawyer up, but i should have.

This, barring family law type questions, is one of the most clear cut "you need a lawyer" questions i've seen on here.
posted by emptythought at 8:17 PM on September 17, 2015 [5 favorites]

You should contact your state Department of Labor- they may have a hotline for wage theft issues (which this is). You can look for the wage and hour division. As stated above, the employer may not average hours across two weeks. Also, it sounds like you were illegally misclassified as an independent contractor. Depending on your state, the attorney general/department of labor may be taking an aggressive approach to these violations. It's worth making a few of these calls before you start paying your own lawyer.
posted by cushie at 9:21 PM on September 17, 2015 [4 favorites]

Definitely contact your state dept of labor. They have a staff of trained investigators who can look into this without revealing your name in anyway. They are extremely knowledgable about legality and options for recovering back wages. There's virtually no downside.
posted by neematoad at 4:12 AM on September 18, 2015 [2 favorites]

It's worth making a few of these calls before you start paying your own lawyer.

Definitely. It's not that a lawyer wouldn't be helpful here, it's just that it doesn't have to be a lawyer that you're paying at the outset (and this kind of case is unlikely to be profitable for a lawyer to take on a contingency basis.) Your state attorney general's office or department of labor, or the federal DOL's Wage and Hour Division should be able to give you some starting points.

Give them a call and make sure those extensive records are in good order!
posted by asperity at 8:02 AM on September 18, 2015 [1 favorite]

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