Misclassification of Exempt Status:
Some workers, such as salaried employees who make a certain amount of money per week, are not eligible to receive overtime pay. Unfortunately, many hourly employees who should receive overtime are often misclassified as “salaried” or “exempt” from overtime wages. This incorrect classification may very well be made on accident. Still, regardless of the employer’s intent, this mistake can result in a serious amount of lost wages for an employee who has worked overtime.
Misclassification as an Independent Contractor:
Many times, individuals who should be compensated as an employee are hired as an independent contractor. When an hourly worker is misclassified as an independent contractor, this worker stands to lose the time-and-a-half pay that is owed for overtime work. Labeling an employee as an “independent contractor” saves the employer money. Employers do not pay federal or state taxes on behalf of independent contractors. In addition, independent contractors are not covered under the employer’s workers’ compensation insurance. In cases of potential work misclassification, an attorney will be able to determine your correct classification and whether you are owed overtime pay.
Uncounted or Miscounted Overtime:
In addition to misclassification of work, there are other ways that employers can fail to count overtime that is legally due. One example of this is the instance discussed above, when a manager refuses to pay overtime because they did not specifically ask the employee to work overtime.
Workers can also lose overtime pay when their hours are illegally averaged over a 2-week pay period. According to the law, overtime should be counted each week. Still, some employers will calculate pay by averaging the hours worked over 2 weeks. For example, if an hourly employee works 60 hours one week and 20 hours the next, this person may be paid as if he or she worked two 40-hour weeks. However, this employee would in fact be owed 20 hours of overtime pay for hours worked in the first week of the pay period.
Employer’s Failure to Pay for All Working Time:
Oftentimes, an employer will fail to pay for all of the time worked by an employee. This can result from a simple misunderstanding on the employer’s part or can be an intentional and unethical bid to conserve company money. In either scenario, it is important for workers to understand when their actions qualify for pay.
Generally speaking, whenever an hourly worker does something at the behest or for the benefit of the employer, that is working time that should be compensated. This is true whether or not the work was done at the usual job site.
Here are some examples of compensable time that are often overlooked to the detriment of workers.
- Missed lunch breaks
- Short (less than 20-minute) breaks
- Driving time from an office to a job site
- Checking and responding to emails from home
- Preparing work equipment
- Doing other preparatory work for a job
- Cleaning up after a job
- On-call time
- Attending training sessions for a job
In the above cases as well as many others, an employer is legally responsible for paying workers for their time. If you believe you haven’t been rightfully compensated for all of the time you’ve worked, an employment attorney can help you formulate a plan to earn back this pay.
Minimum Wage Violations:
When an employer fails to pay workers at or above the state and federal minimum wage, this employer can be held legally responsible for the wages they owe. The federal minimum wage is currently $7.25/hour, while New Jersey’s minimum wage will increase from $11.00/hour to $12.00.hour as of January 1, 2021. Therefore, if a New Jersey worker earns less than $12.00/hour from their employer starting January 1, 2021, that worker is entitled to compensation to make up the difference between their actual pay and the legal minimum wage.
Minimum wage violations can occur subtly in cases involving tipped workers. When employees earn tips, their hourly wage plus average tips (by the hour) must add up to at least the minimum wage. If this total amount equals less than the minimum wage, then the employer has violated minimum wage law. This can happen for various reasons, including if the tip pool has been split amongst managers or other employees who don’t work for tips. In such instances, a wage lawyer will work to determine whether improper tip-splitting has occurred and how it has affected tipped workers’ wages.