Most employees working over 40 hours a week must be paid overtime. Overtime pay is 1 ½ times an employee’s regular rate of pay. Just because someone is paid a salary does not mean they are not entitled to overtime. What mainly determines if you should get overtime pay is: (1) your job type, (2) your job duties, and (3) whether you work more than 40 hours a week.
There are several types of jobs that the law exempts from overtime. If you are not exempted, you should get overtime if you work more than 40 hours a week, even if you are paid a salary.
There several exceptions (called “exemptions”) under the Massachusetts Overtime Law and the federal Fair Labor Standards Act. An important category of exemption exists for “bona fide” executives, professional, and administrative personnel. The key terms here is “bona fide.” Workers are often misclassified. Employers have a financial incentive to misclassify workers who are non-exempt (entitled to overtime) as exempt (not entitled to overtime). The rules governing overtime exemptions are varied and complex, and there are very few hard and fast rules. However, your job title does not decide if you get overtime. There is a long history of employees calling employees “supervisors” and wrongfully not paying them overtime. Just being a “supervisor” doesn’t make you exempt, especially if you have no real managerial authority and even perhaps perform physical labor along side other workers.
But here are some technical details…. Exempt executive employees are those who are paid a salary not less than $455 per week, have as their primary duty to manage part of the business, regularly direct the work of two or more other employees, and have the authority to hire or fire other employees or have their recommendations about hiring, firing, and promotion of other employees taken very seriously by their bosses.
Exempt administrative employees are those who are paid a salary of at least $455 per week and whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. I think the administrative exemption is the toughest one to figure out in the real world because it is so susceptible to multiple interpretations. However, not all employees who work in offices and do “administrative” tasks are administrative employees for purposes of the exemption. See Kelli K. Goodrow vs. Lane Bryant, Inc., 432 Mass. 165, 170-1 (2000) (discussing bona fide executive test under Massachusetts and federal law).
There are many other overtime exemptions for specific types of employees in specific industries. Examples include: certain computer and creative professionals, outside salespeople, fishermen, seamen, certain truck drivers, seasonal farm workers, people who work at very small newspapers, some mechanics at auto dealerships. These are only some examples.
A common type of overtime claim exists when a worker is paid a salary “based on” a 40-hour week, but that employee works more that 40 hours per week and is not truly exempt from overtime.
Off-the-Clock Overtime Work
Many overtime cases involve the misclassification of workers as exempt employees, but other cases simply involve working off the clock or being forced not to report all of your hours.
Retaliation Protection from Overtime Claims
The same protections that exist against retaliation for unpaid wages exist for complaints about unpaid overtime. In fact, under Massachusetts law if an employee complains of overtime violations and gets fired or otherwise discriminated against there are minimum statutory damages. If the employee who is fired is out of work or underemployed for longer than one month, it is possible to sue for more larger amounts of retaliation damages.
Overtime Statute of Limitations
The statute of limitations for overtime cases is three years.
Overtime Claim Procedures
It can be hard to know if you should be getting overtime pay for overtime hours worked. You can confidentially send an email to firstname.lastname@example.org describing about your situation. We will let you know if you have a case that we think is worth pursuing. When we take on a wage or overtime case, we almost always do so on a contingent fee basis, which means that we do not charge any fees unless there is a successful settlement or judgment.
The overtime law provides that an employee who prevails in his case can recovery three times the unpaid overtime (going back three years), his attorneys’ fees and costs.