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Overtime Litigation Defense Attorney

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Federal and state overtime law can be complicated. An employee can believe they’re entitled to overtime, and it can become a costly problem. Overtime litigation, like minimum wage litigation, an employee who successfully sues for lost wages can be awarded an equal amount of liquidated damages. That means an employee who is awarded $2,000.00 in unpaid overtime can also receive an additional $2,000.00 from you. And if multiple employees join in on the overtime claim? That can add up very quickly. It’s important if you’re being sued for unpaid overtime to consult with an overtime litigation defense attorney to try to pay nothing, or at least as little as you can.

How Hours Can Be Calculated

The Fair Labor Standards Act, the federal law that established the minimum wage, has multiple ways to calculate overtime pay. It may be that in an employee’s complaint against the company, they calculate overtime pay in a way that is inappropriate and intended to inflate damages. The main ways to calculate hours are based on whether an employee is paid hourly, salaried, or salaried with flexible hours intended to represent potentially more than 40 hours of work in one week and less than 40 hours in another, with the understanding that generally it evens out to the same wage. For the former, calculating hours is straightforward; multiply the hourly wage by 1½ to get the overtime rate and multiply that by the number of hours worked above 40 to get the overtime pay owed. For salaried, you need to divide the weekly wage by 40 to get the hourly rate, and then you multiply that by 1½ to get the overtime rate, and multiply that by the number of hours worked over 40 to get the overtime pay owed. For the third method, weekly salaries with no difference in hours worked, you can take the weekly salary a worker earns, divide that by the TOTAL NUMBER OF HOURS WORKED, because in this pay agreement the employee has agreed to be paid the same even if they work more than 40 hours, and after you divide it you get the adjusted hourly rate. You multiple that by ½, because again, they have already been paid for the hour, they just need to get the overtime pay, so you multiply by ½ to get the overtime rate. Once you have the overtime rate, you can multiply that by the number of hours worked over 40 to get the overtime pay. So, if someone is paid a weekly salary of $800.00 and worked 50 hours, with the regular hourly method of finding their overtime pay they would be owed $300.00. However, with the flexible hour salary, someone with the same salary and hours would be owed $80.00. Not all state overtime laws allow the flexible hour method of calculating overtime. For example, the Virginia Overtime Wage Act only allows the hourly and salary method of calculating overtime. But, if your state does allow it or if you’re being sued in federal court, being able to use this calculation could save you thousands if not tens of thousands of dollars in potential damages or settlements. Consulting with an overtime litigation defense attorney can help you determine if such a calculation is feasible for your case.

Who Is Exempt?

There are multiple exemptions to overtime and minimum wage written into the Fair Labor Standards Act. Some of these exemptions are based on industry, like agriculture, and others are based on job function. Generally, if you do not know for certain that an employee should be exempt, it is better to treat them as though they are non-exempt, but since it is too late for such things, let’s go over some possible defenses to an overtime lawsuit. Three major exemptions are professional, administrative, and executive. Each requires an employee to be paid at least $684.00 per week. The professional exemption requires a worker to be employed on the basis of specialized knowledge, and that this knowledge was necessary to acquire over a long academic period. An example of a non-exempt employee would be a teacher or professor, who need to attend college or graduate school to perform their job, or a lawyer who needs to go to law school for a number of years to be able to practice. And it needs to be an actual requirement, and not simply a stated preference. A job posting may require a college degree, and it may be filled by someone with a graduate degree with specialized knowledge, but if that’s unrelated to the job and their function and it is a position largely held by those with associate’s degrees or even high school diplomas, then it is likely not exempt. The administrative exemption requires an employee to primarily perform administrative tasks, as their main job function. They cannot perform administrative tasks as incidental to their job. For example, a non-managing retail employee may make schedules or help with office tasks, but if the main thing they do is stock shelves and work the register they probably do not fall under this exemption. But, a secretary or receptionist likely does, as long as they are able to execute discrete judgment in how they accomplish their tasks. The executive exception is for employees who act as managers primarily, and who have the ability to hire or fire other employees. So, for middle manager types or division heads who can fire employees who don’t pull their weight and hire their replacement without consulting you. Whether any of these exemptions, or any others in federal or state law (depending on the venue of the lawsuit), actually applies in your case is something an overtime litigation defense attorney can help you determine when creating your defense.

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