FLSA... an overtime trap for the unwary! How to protect yourself.

march 20, 2019

The FLSA wage overtime laws require employers to pay time and one half of an employee’s regular wages for any hours worked in excess of 40 hours in any given week. Mistakes can easily be made by companies engaged in construction in assuming that certain employees who earn commission are exempt from the overtime payment requirements or in failing to maintain records which establish exactly how many hours and day and week each employee earned.

Maintain accurate employee time records and keep them for at least three years (plus) from the time the hours in question were worked. The statute of limitations (time in which a non-exempt employee can maintain and overtime wage claim) is two years (both federal and Georgia law) from the date of the alleged wage violation. It is three years (federal law) if the employee can show the failure to pay overtime wages was willful. Make sure employee time is kept by the day (indicating the number of hours work) and week so that if there is a challenge by the employee as to the number of hours worked, you will have a clear record of the hours actually worked in each week of the employee's tenure at your company.

If overtime is worked, make sure the employee is paid time and one half of their “regular wage.” An employee’s “regular wage” may not simply be their hourly rate but may also include non-discretionary bonuses or other additional payments. If an employee files a claim for overtime wages and it is determined that the employee was due overtime wages and not paid, the employee will be entitled to back wages, plus liquidated damages (equal to the amount of back wages), plus attorney’s fees. Therefore, if an employee files an overtime wage claim, the employee is not exempt, and it is determined that the employee is entitled to any amount of overtime wages, consider resolving the claim up front in order to minimize attorney's fees.