Laws for overtime rates and minimum wages under the Federal Labor Standards Act (FLSA) are generally for employees who work a certain number of hours per week and are paid wages depending on how many hours they work.
Many states have two categories of salaried employees: one is exempt and the second is non-exempt.
Those who are exempt from rules regarding overtime and rest breaks aren't entitled to extra pay for additional hours, but they are entitled to a normal salary.
An exempt employee is one who is paid a regular salary of no less than $684 per week, or $35,568 per year in certain occupations, such as executives, administrators, professionals, sales workers and computer employees.
An exempt employee is paid the same salary regardless of the number of hours worked and is not typically entitled to overtime pay.
Examples of Wage Theft for Salaried Employees
Even if you are a salary employee, you can experience wage theft. There are some salaried employees who aren’t considered to be exempt.
Salaried employees are entitled to overtime of time-and-a-half for hours worked over 40 in a week. A non-exempt employee also may be entitled to payment for on-call hours.
For example, if the employer tells the employee to remain within 50 miles of his work on a day off in case s/he is needed.
Because the employee’s ‘freedom’ has been denied, then this time spent needs to be compensated at the employee’s normal rate of pay, or at time-and-a-half if s/he has already worked 40 hours that week.
If the employer deliberately fails to pay for the overtime, then it can be classified as wage theft.
What to Do If Experiencing Wage Theft as a Salaried Employee
If you are a victim of wage theft while being paid a salary, then you need to file a complaint with your employer. If your employer does nothing to correct the mistake, the claim can be filed directly with the US Department of Labor’s Wage and Hour Division (WHD), or you may file a lawsuit to recover the money you are owed from the wage theft.
Before going any further with a lawsuit, you will need to speak with an employment law attorney to determine whether or not you have been the victim of wage theft. If the evidence is clear that you are a victim of wage theft, then you and your attorney can decide what action will be taken next.
Steps to Take When a Salary Employee is Experiencing Wage Theft
The first step you will need to follow is gathering all the evidence you can to prove you are a victim of wage theft as a non-exempt salaried workers which will help to support your claim.
- your job title and job duties;
- the number of hours worked per week;
- an employment contract or letter outlining your hours and pay;
- the last few pay stubs;
- the name and contact details of your employer;
- a detailed description of your wage theft.
You need to provide as much information as possible so that the WHD will be able to make a decision whether you are a victim of wage theft or not. Your lawyer may try to negotiate with your employer to get the unpaid wages paid before proceeding to a lawsuit.
If you must file a lawsuit and are successful, you may get back all the wages that your employer has failed to pay. This includes any unpaid overtime premium that was not paid.
You may also claim for any interest your employer may have gained while taking part in wage theft. Sometimes, liquidated damages are paid instead of interest.
If it proven that your employer acted “willfully’’, it may be asked to pay double the unpaid wages which are called liquidated damages according to federal law. Your employer may be told to pay your attorney’s fees if you win the wage theft claim and any other costs that have accumulated due to the case.
It is never easy winning a wage theft claim as the employer is quick to refute any claims made against it, but an experienced employment lawyer may be able to help you through these difficult times and get the wage theft repaid and the compensation you deserve by filing a lawsuit against your employer.
You are welcome to use the free case evaluation form available below to find a suitable employment lawyer near you.