FREQUENTLY ASKED OVERTIME QUESTIONS
The Federal Fair Labor Standards Act (FLSA) and the Illinois Minimum Wage Law (IMWL) require that “non-exempt” employees be paid time and a half of their regular rate of pay for each hour worked in excess of 40 in a single workweek. Since the overtime laws can be confusing, listed below are some of the more frequently asked questions people have about this topic.
- What is the minimum wage in Illinois?
The minimum wage in Illinois is currently set at $8.25 per hour for those individuals who are 18 years and older. However, there is constant legislation aimed at increasing the state minimum wage. Please check with employee attorney, Boznos Law, for the most up to date information.
- When is overtime pay legally due?
You are entitled to pay at time and one half your regular rate of pay if you worked over 40 hours in a single workweek. You need to ask your employer for their definition of a workweek.
- Does my employer have to pay me time and a half or double time for working a legal holiday or a Sunday?
No. If working the legal holiday or Sunday puts you over 40 hours in a workweek, then your employer must pay you at time and one half of your regular rate of pay for those hours worked over 40. If your employer’s policy allows for payment of time and one half or double time, then the employer must honor that agreement.
- Who is exempt from being paid overtime?
Generally, the following employees are exempt from overtime pay: salespeople and mechanics involved in servicing cars, trucks, or farm implements at dealerships; agricultural labor; government employees; executive, administrative or professional employees as defined by the Fair Labor Standards Act; Certain employees involved in radio/television in a city with a population under 100,000; Certain employees paid by commission as defined in the Fair Labor Standards Act; Employees who exchange hours pursuant to a workplace exchange agreement; Certain employees of educational or residential child care institutions.
- How do I know if I qualify as an executive, administrative or professional employee?
The law provides that two tests must be fully met to determine if you are an executive, administrative or professional employee. First, as a general rule, you must be a salaried employee. Second, the primary duties you perform must also be exempt. This is a highly complex area.
- If I am paid a salary do I still qualify for overtime?
Possibly. You are paid a salary if you regularly receive each pay period on a weekly or less frequent basis, a predetermined amount constituting all or part of your compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. However, an employee being paid on a salary basis is not automatically exempt from receiving overtime pay. The primary duties you perform must also be exempt to disqualify you from overtime pay.
- Can I be required to work overtime?
Yes. Unless such work would violate the One Day Rest in Seven Act.
- Is “Comp. Time” legal?
No. Compensatory time off in place of overtime is not legal in the private sector.
- Can my employer make a “different deal” with me for overtime wages?
In almost all cases, no. Employers and employees who are covered by the Fair Labor Standards Act or the Illinois Minimum Wage Law are not free to bargain for either a wage that is below the minimum wage or for hours worked in excess of 40 per week without paying a premium (generally time and a half). Many employers believe they can “cut a deal” with employees to avoid paying overtime rates – they can not.
- What if I did not get permission or ask for the time I worked?
In most cases, failure to ask is not a defense for an employer in an overtime situation.
- How do I prove the amount of time I worked?
It is the employer’s duty to maintain accurate and complete records of all time worked by its employees. If an employer does not maintain proper records, then the employee is entitled to recover for overtime, based on a good faith, reasonable estimate of the time worked.
- What if I didn’t report or ask for my overtime?
It is your employer’s obligation to control and document your work. If your employer does not want the work to be done, it must prohibit it. Failure to ask for overtime is not a defense, unless your employer has a requirement and/or policy that all time must be reported and actually enforces it, or if an employee’s failure to report or ask means was the employer did not know (or have reason to know) work was being done.
- What if I am a salaried employee?
The manner in which an employee is paid does not determine if overtime pay is owed. Rather, an employee’s job duties performed determines if the employee is exempt from the overtime rules. Even if an employee was told that he or she would be paid a certain salary regardless of how much time was worked, the employee may still be entitled to overtime pay. The right to overtime pay cannot be bargained away, avoided or refused.
- What about highly paid blue collar workers?
In general, non-management employees in production, maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, ironworkers, craftsmen, operating engineers, longshoremen, construction workers, and laborers are entitled to minimum wage and overtime pay, regardless of how much the employee is paid.
- What if I am an independent Contractor?
There are specific legal requirements for determining if someone is an independent contractor. Often times employers will label someone an “independent contractor” when, in fact, they are not. There is no single rule or test for determining whether an individual is an independent contractor or an employee for purposes of the FLSA. The Supreme Court has held that the total activity or situation controls. Important factors to consider include: 1) The extent to which the services rendered are an integral part of the principal’s business.
2) The permanency of the relationship.
3) The amount of the alleged contractor’s investment in facilities and equipment.
4) The nature and degree of control by the principal.
5) The alleged contractor’s opportunities for profit and loss.
6) The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
7) The degree of independent business organization and operation.
While most true independent contractors are not entitled to overtime, if you are being misclassified as one, you are entitled to receive overtime pay.
- What about retaliation for making a claim for overtime?
The FLSA is aimed at protecting the rights of employees and forbids an employer from retaliating against an employee who files a complaint or participates in a legal action to collect overtime pay. It is illegal for an employer to retaliate against an employee who seeks overtime wages, and additional damages can be sought against any such employer. Under some extreme circumstances, other penalties can be levied, including even imprisonment.
- What are the time limits?
In most cases, a Plaintiff can recover unpaid overtime for work done for two (2) years prior to a lawsuit being filed. In some instances, unpaid overtime can be recovered for work done for three (3) years prior to a lawsuit being filed. It is important to know that only the filing of a lawsuit “stops the clock”. Complaining to your employer or the Department of Labor does not “toll” the FLSA statute of limitations, so it is important to speak to an attorney regarding your claim as soon as possible.
With over 30 years’ experience in advising employers and employees on workplace issues, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the changes to the overtime laws. Call Bill Boznos today at (630) 375-1958 or contact us at www.boznoslawoffice.com/contact-us through our website.