Wage & Hour FAQs
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 (Florida minimum wage) for each hour worked where the employee receives tips (tipped employees). 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 work home, but do not include it in the employee’s time records.
g. Combining Workweeks: Some employers 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.
l. After-Hours Email: Certain employees may be entitled to overtime pay for responding to e-mails, text messages, or other electronic communication received on their computer, phone, PDA, IPhone,® or smart phone outside official work time or while they are off-the-clock. If you are non-exempt from overtime wages, then you may be entitled to overtime pay for responding to such electronic communication.
m. Independent Contractor Agreements: Another trick employers use to commit wage theft is to make their workers sign independent contractor agreements. The actual working relationship, not signing a piece a paper, determines whether a worker is an employee. Generally, an independent contractor works for more than one company at a time and controls his own work.
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