Unpaid overtime cases arise under the Fair Labor Standards Act (“FLSA”), the federal law that generally provides for time and a half overtime pay.

To win an unpaid overtime case, you must prove three (3) basic elements by a preponderance of the evidence:

(1) who was employed by the defendant during the time involved;

(2) that your work was engaged in trade or in the production of goods for the defendant’s trade or business or businesses under a unified operation or common control employed at least two persons and was engaged in trade or in the production of goods for the trade and had annual gross sales of at least $500,000; and

(3) that the defendant did not pay you the overtime required by law.

Engaged in Trade

The term “commerce” has a very broad meaning and includes any business, commerce, transportation, transmission, or communication between any state and any place outside the state.

Examples of employees who are “engaged in business” under the Fair Labor Standards Act include anyone who uses a telephone, fax machine, US mail, or email system to communicate with people in another state. Likewise, it also includes employees who use electronic devices that authorize credit card purchases. As you can see, the definition is very broad and is determined on a case-by-case basis.

Overtime Rate Calculation

The Fair Labor Standards Act generally requires an employer to pay its employees at a rate of at least half their regular rate for time worked in a workweek in excess of forty hours. This is commonly known as time and a half overtime pay.

An employee’s “regular rate” for a particular week is the basis for calculating any overtime pay due for that week. The regular rate for a week is determined by dividing the first 40 hours worked by the total wages paid for those 40 hours. The overtime rate, then, would be half that rate and would be due for each hour in excess of 40 hours worked during the workweek.

Exemptions under FLSA

Most employers justify not paying overtime by claiming a “waiver.” Probably the most common exemptions are the executive and administrative exemptions, but there are many more.

To receive the benefit of a executive exemption, the defendant must prove that his primary duty was to manage the business or department of the business. For example, a chief executive officer would likely be exempt under the FLSA if he directed the work of at least two or more employees and had the authority to hire or fire other employees, or his suggestions and recommendations regarding hiring, firing, promotion , promotion or any other change in status of other employees received particular weight.

To receive the benefit of a administration waiver, the defendant must prove that your primary duty was the performance of a job directly related to the management or general business operation of your employer and that you exercised your discretion and independent judgment on material matters. An office manager may qualify for the administrative exemption.

When determining whether or not you are an exempt employee, it is important to remember that it is the work you actually performed that matters, not your written job description. In other words, if your job description states that you are a manager, but your primary duty is as a receptionist, you may not be exempt and may be owed overtime. As you can imagine, these types of cases are highly factual and vary from case to case.

Damages

The measure of damages or money under the FLSA is the difference between what you should have been paid under the Act and the amount you were actually paid. This is called a late payment. Damages are not allowed as a penalty and may not be imposed or increased to penalize your employer.

Finally, if you are successful in winning your case under the FLSA, you may be entitled to liquidated damages (double back pay) and reasonable attorneys’ fees.