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Do I have a wage and hour claim?Determining whether an employee is owed wages is often a complex question requiring a detailed look at the specific facts of your situation and how the law applies to those facts. To help you determine if you have a claim, we have prepared a questionnaire for you to fill out. We will contact you for a free consultation if we think we can help you. Generally speaking, most employees are either paid on an hourly basis for each hour they work or are paid a fixed salary regardless of the number of hours worked. With rare exceptions, for those employees paid on an hourly basis, they must be paid time and one half (overtime) for any hours worked over forty (40) in a workweek. In general, employees who are paid a salary are not entitled to overtime for hours worked over forty (40). Only certain types of employees may be paid on a salary basis and need not be paid overtime. For example, professional, administrative, and executive employees may be exempt form the overtime requirements and may be paid a salary. Some employees who receive a salary may nevertheless be entitled to overtime because their employers have misclassified them as being exempt from overtime or have made certain mistakes when paying their salary. In fact, it is a misconception that just because an employee is paid a salary, the employee is not entitled to overtime pay.
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Common ways employers cheat employees out of their wages.a. Working "Off-the-Clock": Some employers require their employees to do certain tasks before clocking in or require them to clock-out at the end of their shift but keep working until the job is finished. b. Breaks and Lunches: Many employers do not pay their employees for short breaks. The law, however, usually requires employers to pay their employees for breaks that last only five (5) to twenty (20) minutes. Also, if an employee is required to clock out for lunch but remain working at her desk or is not completely free from her duties during lunch, the employer must pay the employee for that time. c. Misclassifying Employees: Many employers will try to avoid paying overtime by simply paying a salary to employees who are not exempt from the requirement that they be paid overtime. Generally, executive, administrative and professional employees are exempt from the overtime requirements. Employers sometime give an employee a fancy title to try to make their employees fit into one of those exemptions, but it is the actual duties the employee performs, not the title, that determine whether an employee must be paid overtime. For example, an employer may call an employee an "assistant manager" and pay that employee a salary, but if the employee does not really manage anything or supervise anyone, he probably should be paid on an hourly basis and entitled to overtime pay. d. Improper Pooling of Tips for Wait Staff: In certain situations, employers who employ wait staff are permitted to pay their wait staff less than the minimum wage for each hour worked where the employee receives tips. In other words, the employer gets a "tip credit." Sometimes, an employer will not be permitted to claim a tip credit if it requires its employees to share their tips with employees who do not customarily receive tips, such as the restaurant manager or the chef. e. Unpaid Final Paycheck: Some employers terminate their workers and then fail to give them their final paycheck. Usually, employers are required to pay employees their wages, promptly—on the regular and customary payday. Absent extraordinary circumstances, employees must receive their final paycheck of at least their minimum wages. An employee who receives nothing for their last paycheck, is actually receiving less than the Florida and Federal minimum wage for their hours worked. Bober & Bober, P.A. frequently represents clients who are owed their last paycheck, with no fees or costs payable unless unpaid wages are recovered. f. Take Home Work: Some employers permit an employee to take home work, but do not include it in the employee’s time records. g. Combining Workweeks: Some employer try to avoid paying overtime by averaging an employee’s hours over 2 or more workweeks when determining if the employee worked overtime. For example, if you work 35 hours one week and 45 hours the next week, you are paid for 80 hours and are not paid any overtime for the week in which you worked 45 hours. h. Pre-approval Requirement: Some employers refuse to pay for overtime work if the employee did not get advanced permission to work overtime. i. Meetings and Training: Some employers require employees to attend work-related meetings and/or training sessions, but do not pay for those hours. For example, employers may require construction workers to attend morning safety meeting without compensation for the time spent at those safety meetings. j. On-Call Work: Some employer require employees to be “on call” when they are not scheduled to work and to report to work in a short time period. k. Employees Who Drive Cars and Light Trucks (i.e weighing less than 10,000 pounds): As of August 10, 2005, covered employers must pay overtime to employees who drive vehicles that weigh less than 10,001 pounds pursuant to the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). For example, cable and satellite dish installers who drive vans may be entitled to overtime. However, employees who drive certain other types of vehicles, such as those designed to carry at least 15 passengers including the driver and those that carry hazardous materials, may not be entitled to overtime.
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Will I have to pay attorneys' fees for bringing my claim?Bober & Bober, P.A. handles most cases, including wage cases, on a contingency fee basis. This means that if Bober & Bober, P.A. cannot recover any money for your claim, then you will not owe any attorneys' fees to Bober & Bober, P.A. for time spent pursuing you claim. If Bober & Bober, P.A. does recover money for your claim, then Bober & Bober, P.A. either will be paid its fees by the employer who has violated the law, or will get a percentage of the total amount of the money recovered on your behalf.
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Will my case settle without going to trial?Many wage and hour claims are settled after your case is filed in court, but before a court trial takes place. One of the reasons for early settlement is that employers are required to keep records of the hours employees work and how much they pay each employee. Sometimes, however, the question as to whether an employee qualifies for overtime wages is not clear under the law and it must be litigated in court. At Bober & Bober, P.A., we prepare each case as if it will ultimately go to trial so that our clients can confront employers from a position of strength. Preparation includes presenting the facts of your case in the light most favorable to you, interviewing witnesses, obtaining documents, and discovering all the facts potentially relevant to your legal problem.
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How much is my wage claim worth?Most cases require a through review of an employee's pay structure and the law to determine whether an employee is owed wages and, if so, how much. Generally, however, if your employer has unlawfully failed to pay you overtime, you may be entitled to damages that included back pay, liquidated damages (double the amount of wages owed), attorney's fees, and costs. Under federal law, the time period for which you may sue your employer for unpaid wages is two (2) years, but in some cases you may be able to obtain unpaid wages from up to three (3) years ago. In some cases, under Florida law, you may be able to file a lawsuit for unpaid wages for up to five (5) years ago. To determine what you are owed, we must first look at the difference between what your employer paid you and what it should have paid you under the law. If you were entitled to overtime, your employer must pay you one and one have times your regular rate of pay for each hour worked over forty (40) in a workweek. Generally, your regular rate of pay cannot be less than the minimum hourly wage required by federal law and some state laws. At Bober & Bober, P.A., we will discuss all the relevant factors with you throughout the progression of your case. Our goal is to help you achieve the maximum recovery possible under the law. If you would like to determine the approximate amount of overtime you may be owed, please use our overtime calculator. back to top
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Can I be fired for making a wage claim against my employer?Federal law and some state laws prohibit employers from firing an employee or discriminating against an employee for bringing a wage and hour claim, or for testifying about that claim. If an employer does retaliate against such an employee, it can be held civilly and criminally responsible for such unlawful actions. back to top
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What is the new Federal Minimum Wage?
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Date Work Performed |
Federal Minimum Wage |
Prior to July 24, 2007 |
$5.15 |
July 24, 2007 to July 23, 2008 |
$5.85 |
July 24, 2008 to July 23, 2009 |
$6.55 per hour |
On or after July 24, 2009 |
$7.25 |
If your employer is not paying you at least the federal minimum wage, you may have an unpaid minimum wage claim. For example, if your employer refuses to pay you anything for you final week of work, you have been paid below the Federal minimum wage and may have a minimum wage claim.
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(954) 922-2298
(800) 995-WAGE (9243) toll free
Besides the federal Fair Labor Standards Act (FLSA), are there any additional protections for Florida employees?
As of May 2005, the Florida Constitution, (Article X, §24), requires employers to pay Florida workers a higher minimum wage, compared to the federal minimum wage required under the federal FLSA. Additionally, each year, Florida’s minimum wage is subject to annual increases based on inflation. Notably, for “tipped employees,”employers can receive a $3.02 tip credit against Florida and the Federal minimum wage. Thus, as the Florida and Federal minimum wages increase, so will the direct wage employers must pay to their tipped employees.
The Florida constitution also arguably provides broader protection than the FLSA to employees against employer who take an adverse action against any person in retaliation for exercising any rights provided by the constitutional amendment. Such protected rights include, but are not limited to, "the right to file a complaint or inform any person about any party’s alleged noncompliance with this amendment, and the right to inform any person of his or her potential rights under this amendment and to assist him or her in asserting such right."
One of the most significant differences between Florida’s constitutional law and the FLSA is that under the Florida constitution, Florida employees and ex-employees may file a lawsuit four (4) years or, in the case of a willful violation, five (5) years after the employer committed the wage violation. Under the federal FLSA, an employee has only two (2) years, or three (3) years for willful violations, to file a lawsuit.
The available remedies under the Florida constitution include back pay, an amount equal to the back-pay in liquidated (double) damages, attorneys’ fees and costs for prevailing employees, and equitable relief, if appropriate. The Florida constitutional amendment also provides for a $1,000 per violation fine against an employer or responsible person who willfully violates the law.
In addition to the Florida constitution, employees may be able to bring claims against their employers for unpaid wages based upon written or oral employment contracts. back to top
Call Today:
(954) 922-2298
(800) 995-WAGE (9243) toll free
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