Common Wage and Overtime Violations

While many companies comply with the wage and overtime laws, others routinely violate federal and state laws protecting the wage and overtime rights of American workers and their families.Some common wage and hour violations are discussed below. Please remember that these are just a few examples of the many different types of wage and overtime violations. If you believe a current or former employer violated your rights or the rights of your client at any time during the past three years, you should contact The Winebrake Law Firm at 215.884.2491 or click here to contact us.

Failing to credit and pay employees for all time spent working
Some companies fail to give workers credit for all hours worked. Such practices almost always are illegal and are an affront to working families.

Examples of “off-the–clock” violations:

• Managers altering payroll records at the end of the pay period
• Requiring workers to “set up” the work site before punching or signing in
• Demanding cleaning up or “closing down” the work site after punching or signing out

Failing to pay for “unauthorized” overtime
Some companies follow a policy that workers are not entitled to overtime pay unless it is “authorized” by a manager.  These companies then refuse to pay overtime, even though the manager knows the overtime work was performed. Such policies are almost always illegal.

Misclassifying salaried employees as exempt “managers,” “supervisors,” “administrators” or “professionals”
Some companies pay workers a salary (instead of an hourly wage) and then tell the worker that he/she is not entitled to overtime because he/she has an “exempt” job title.  But, in fact, many salaried workers are entitled to overtime pay. Whether a salaried worker is entitled to overtime depends on his/her actual job duties, not on the job title provided by the company.

Examples of commonly misclassified employees:

• Managers of small retail stores
• Managers of departments within larger retail stores
• Newspaper sales managers
• Bookkeepers or accountants without CPAs
• Computer technicians and support staff who do not regularly write code
• Warehouse managers and supervisors
• Work crew captains or foremen
• Licensed Practical Nurses and similar line-level health care employees
• Mortgage loan officers
• Home health aids or visiting nurses employed in Pennsylvania
• Call center sales representatives
• Trainees for exempt positions

Misclassifying employees as exempt motor carriers
Some companies contend that workers who drive vehicles as part of their job duties are not entitled to overtime pay under the “motor carrier” exemption to federal and state overtime laws.  However, in order to fall within this exemption, the worker generally must either (i) drive a vehicle weighing in excess of 10,001 pounds or (ii) transport hazardous materials requiring placarding under federal Department of Transportation regulations. Thus, individuals who drive their personal automobiles or drive vans or pick-up trucks generally are entitled to overtime pay.

Allowing work during meal breaks
Some companies allow workers to perform work during meal breaks or require workers to be on-duty during the meal break.  But, under the law, it is the company’s responsibility to ensure that workers do not perform work-related duties during meal breaks.  In addition, employees, such as private security guards, who are required to be “on-call” and to remain on the premises throughout their meal breaks generally are entitled to be paid for this time.

Deducting for rest or meal breaks of less than 20 minutes
Generally, workers must be paid for scheduled rest or meal breaks of less than 20 minutes. Yet, some companies make illegal deductions for such breaks.

Independent contractors
Some companies refuse to pay workers overtime by calling them “independent contractors” instead of “employees.” But whether a worker truly is an independent contractor depends on the specific, real-life circumstances of his employment. A worker is not an independent contractor just because the company says so.

Examples of workers commonly misclassified as independent contractors:

• Package delivery employees
• Custodial workers
• Cable television installers
• Satellite dish installers

Failing to include commissions, shift differential pay and other monetary payments in the overtime calculation
Workers who work more than 40 hours generally are entitled to overtime pay equaling one-and-one-half times their regular rate of pay. Many workers, however, receive commissions or shift differential payments in addition to their hourly pay. In calculating the time-and-one-half overtime premium, most commissions or shift differential payments must be included in the worker’s regular pay rate, and the worker’s overtime premium must be calculated based on this enhanced regular pay rate.

Examples of workers who receive commissions in addition to hourly pay:

• Automotive technicians and mechanics
• Tire center technicians

Averaging long and short workweeks
Workers generally are entitled to “time-and-one-half” overtime pay for all hours worked over 40 in a single workweek, which is defined as a period of seven consecutive days. Companies generally cannot avoid paying overtime by averaging a “long” workweek with a “short” workweek. For example, if a worker works 48 hours in one workweek and only 32 hours in the next workweek, she usually is entitled to 8 hours of overtime pay for the first workweek. It does not matter that the first 48-hour week and the second 32-hour week “average out” to two 40-hour weeks.

Applying rounding rules that regularly shortchange employees
Some companies who use a time clock or other employee punch-in or sign-in system consistently round workers’ start and end times down to the nearest half or quarter hour. Such rounding practices generally are illegal and can result in substantial underpayment.

Compensatory time
Most hourly employees not employed by the government are entitled to a monetary payment for overtime work. This overtime pay must be calculated at 150 percent of the employee’s regular rate of pay. It generally is illegal for private sector employers to pay non-monetary “compensatory time” (or “comp time”) benefits instead of money.

Winebrake & Santillo, LLC serves clients in Pennsylvania,
New Jersey and New York, and throughout the United States.

Location

Winebrake & Santillo, LLC
Twining Office Center
Suite 211
715 Twining Road
Dresher, Pennsylvania 19025
Phone: 215.884.2491
Fax: 215.884.2492

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