Overtime & Minimum Wage

Unless specifically exempted, the FLSA provides that employers must pay overtime pay, at a rate of one-and-a-half times an employee’s regular hourly rate, for all hours worked over 40 hours in a workweek. In addition, the FLSA requires covered employers to pay employees a regular rate not less than the federal minimum wage. Certain states have additional state-specific overtime and minimum wage laws. Georgia, unlike many states, has no separate overtime laws. Moeller Barbaree’s attorneys have extensive experience in litigating cases for unpaid overtime.

Normally, overtime pay earned in a particular workweek has to be paid on the employee’s regular pay day for the pay period in which the overtime pay was earned. A workweek is a fixed and regularly recurring period of 168 hours (seven consecutive 24-hour periods). Therefore, an employer cannot “average” an employee’s hours worked over two or more weeks to determine the hours worked per workweek. For employees who are not paid a normal “hourly” rate, their regular rate for overtime purposes requires calculating all of the employee’s compensation into an hourly rate. For example, certain incentive pay, such as commissions and non-discretionary bonuses, and shift differentials, may need to be considered when calculating the overtime rate. Regardless of whether employees receive their wages as salary, an hourly rate, a day or piece rate, commission or a combination of these and other manners of compensation, the FLSA requires covered employers to pay overtime wages for each and every hour worked over forty (40) in a workweek.

The FLSA exempts certain types of jobs from the overtime requirement. The FLSA’s “white collar” exemptions are the most common. Employees employed as bona fide executive, administrative, or “learned” or “creative” professional employees are exempt from the overtime pay requirement if they meet certain criteria regarding their job duties and are paid on a salary basis at least $455 per week. Other examples of employees exempt from overtime requirements include:

• Outside sales employees
• Farm workers
• Certain commissioned employees of retail or service establishments
• Seasonal amusement or recreational establishment employees
• Auto, truck, trailer, farm implement, boat, or aircraft salespersons, parts-clerks and mechanics employed by non-manufacturing establishments
• Railroad and air carrier employees, taxi drivers, certain employees of motor carriers and local delivery employees paid on approved trip rate plans
• Domestic service workers who reside in their employers’ residences

The FLSA also recognizes a computer professional exemption which permits payment of an hourly wage of $27.63 (or the $455 weekly salary) for all hours worked if the employee’s duties meet specific high-level criteria.

Additionally, the FLSA requires employers to maintain accurate records of time an employee spends performing compensable work. If an employee brings an overtime claim but the employer failed to maintain accurate records of time worked, the employee may recover overtime compensation based on a reasonable estimate of the time the employee worked over the prior two or three years. If an employer violations the FLSA by failing to pay appropriate wages, the employee may recovery the unpaid wages, as well as liquidated damages, as a penalty on the employer. The Atlanta-based attorneys at Moeller Barbaree have extensive experience in cases involving overtime claims.

Common Overtime Claims

• Misclassifying employees as exempt from overtime
• Not paying hourly employees for all hours worked
• Paying hourly employees only “straight” time for hours worked over 40 in a workweek
• Paying an employee a fixed weekly amount as compensation for overtime pay
• Failure to include bonuses in the “regular rate” calculation for overtime payments
• Treating workers as independent contractors to avoid paying overtime
• Allowing employees to work off the clock or asking them to take “comp time” in lieu of overtime wages
• Employer refused to pay overtime because employee failed to get permission to work beyond normal schedule
• Failing to pay employees for time spent working before and after a scheduled shift

Free & Confidential Consultation with Our Employment Attorneys

If you have questions regarding an overtime or wage and hour claim, contact the Atlanta overtime and minimum wage lawyers at Moeller Barbaree at 404-748-9122, for a free, no obligation consultation or use our convenient email form.