The simple rule for what work is payable is that, time spent performing work that is controlled or required by an employer and performed for the employer’s benefit is payable.

Short rest breaks that are twenty (20) minutes or less, must be paid, regardless of any contractual provision in an employer’s personnel rules. Lunch Breaks do not have to be paid, so long as the employee has at least 30 minutes or more to eat and does not perform any work during the break. If the employee works through their lunch, either voluntarily or involuntarily, then the lunch break must be paid for.

Work performed from home, answering emails or phone calls is generally, considered to be payable work.

Whether time spent being on-call is payable is a highly contentious question. Courts generally, look to see how controlled the on-call time is, and whether an employee is able to make use of the time for non-work purposes.

Generally, time spent traveling from an employee’s home to the place of work or vice-versa is not compensable. However, if the employee drives from their home to a work yard and then must drive to another job site, the time spent driving from the yard to the other work site is compensable.

Time spent setting up a computer so that you can perform your job, inspecting a vehicle before starting your route, or attending mandatory meetings must be paid for and you should be clocked in for these times.

An employer must pay overtime for all hours worked over forty (40) in one workweek period unless the employee meets an FLSA exemption.

Overtime is based off time and one-half your regular rate. Your regular rate, however, is not just your hourly wage. Your regular rate must include all commissions earned as well as non-discretionary bonuses.

So, if you are paid $10.00 per hour, earned $1,000 in commissions that week, and you worked fifty (50) hours that week then your regular rate is $30.00 an hour and your overtime rate is $45.00 an hour. The commission is divided by your total hours worked and then added to your hourly rate. $1,000(commission)/50(hours) = $20.00 + $10.00 (hourly pay) = $30.00 (regular rate). So your overtime is then based off the new regular rate. $30.00 x 1.5 = $45.00.

Similarly, bonuses that are non-discretionary must also be included in the regular rate. Non-discretionary bonuses are bonuses that are automatically granted to an employee if they meet well-defined criteria (ex. sales quota) and managers do not have the discretion to grant or deny said bonus.

Generally, “blue collar” workers do not meet the requirements for any FLSA exemption and must be paid overtime. If your work primarily involves manual labor, then you should be paid overtime.

Even if you are paid only by commission, a day rate, or a piece rate you are still owed overtime for all hours worked past forty (40) in one work week. The only employees who do not have to be paid overtime are employees who meet the FLSA exemptions, some of which are listed below the Basic Overtime Exemptions.

True Independent Contractors are not covered by the FLSA; however, it is very common for businesses to mislabel employees as independent contractors in order to avoid paying overtime and other benefits to the employees.

People frequently mislabeled as Independent Contractors
Welders, field laborers in the Oil and Gas Industry, Salesmen, Construction Workers, and Remote at-home Coders. Regardless of whether you were made to sign an agreement labeling yourself as an independent contractor, you are an employee unless you are truly in business for yourself. If you do not set your own hours, you do not choose which jobs you work, you are not allowed to complete a job in your own way, or you can be subject to discipline by the hiring company then you may be owed overtime.

Even if you are a salaried employee you are still must be paid overtime for all hours worked over forty (40) in one workweek. The only employees who do not have to be paid overtime, are employees who meet a FLSA exemption, some of which are listed below.

This list covers the most basic exemptions to Overtime requirements, it is by no means an exhaustive list. There are dozens of other smaller exemptions but the exemptions listed below are the most commonly used.

To qualify for the Executive Exemption the employee must earn a salary of at least $23,660 per year and their primary job duty must relate to managing the company and/or its employees.

People frequently mislabeled Assistant managers and managers. Many times, these individuals’ actual jobs are so micromanaged that they do not have the authority to qualify for the exemption. If you have been told you do not qualify for overtime because you are a manager or assistant manager, but you do not have the authority to do anything other than follow a script or strict company policy/guideline, then you may have a claim for unpaid overtime.

To qualify for the Administrative Exemption the employee must earn a salary of at least $23,660 per year and their primary job duty must relate to managing the business’s operations.

People frequently mislabeledIT personnel, Managers, Office Workers, and Administrative Personnel. This is the broadest and most commonly used exemption. If you have been told you are administratively exempt but you do are not able to exercise independent judgment in how you perform your job you may have a claim for unpaid overtime.

To qualify for the Professional Exemption the employee must earn a salary of at least $23,660 per year and have job duty that requires specialized knowledge.

People frequently mislabeled Mechanists, Welders, Chefs, IT Personnel, Assistants, and Employees who have a “skilled trade”. If your work is routine, largely governed by predetermined policies/guideline, or does not require any specialized knowledge then you may have a claim for unpaid overtime.

To qualify for the Outside Sales Exemption employees must meet two requirements. Their primary job is to make sales, and they must spend most of their work time away from the office.”

People frequently mislabeled Sales Representative, promoters, and drivers who are required to “upsell.” If you are told you are exempt through this exemption but you rarely leave the office, you work off of a premade customer list, you only sell to existing customers, or you do not deal directly with the customer then you may have a claim for unpaid overtime.

Retaliation occurs when an employer punishes an employee for engaging in a protected activity, such as starting a lawsuit, joining a lawsuit or filing a report with HR. This punishment does not have to be outright termination of the employee. Anything from lowering the employee’s wages, lowering the employee’s work hours, changing the employee’s job function can be considered retaliation. Any action an employer takes that would deter an employee from protecting their rights is generally considered retaliation and is illegal. Once an employee engages in a protected activity they are protected under Federal Anti-Retaliation Laws.

The law forbids discrimination when it comes to any aspect of employment, such as: hiring, firing, promotions, demotions, pay, job assignments, layoffs, training, fringe benefits, pre-employment inquiries, interviews, job referrals, performance evaluations, disciplinary practices, or any other term of employment.

The law also forbids harassment based on the classes listed below, under Types of Violations. Harassment can include: slurs, offensive remarks, offensive symbols, offensive physical contact, and threats. The law does not protect against offhand comments or isolated incidents that are not very serious. Harassment is illegal when it is so frequent or so severe that it creates a hostile work environment or negatively affects your job.