Sally Student works in a movie theater as an usher to pay for school. Lately she has been working 60-80 hours a week but has not been getting any overtime. Sally believes that she should be getting paid overtime but is unsure of what the law says about this. Under the Fair Labor Standards Act (“the FLSA”) employees that are classified as non-exempt are entitled to time-and-a-half compensation. The FLSA makes it illegal for an employer to withhold overtime pay from a non-exempt employee who works over 40 hours in a workweek. Some employers try to avoid paying overtime by misclassifying their employees as exempt. An employee is considered exempt based on the wages they earn and the duties that their job encompasses. Under the FLSA an exempt employee must make at least $455.00 a week ($23,600 per year) and perform exempt job duties. While Sally Student’s job as an usher certainly qualifies her as a non-exempt employee, she is not entitled to overtime pay because she works for the entertainment industry. Under the FLSA certain industries and employers are exempt from having to compensate their employee’s for overtime worked, too bad for Sally, movie theaters fall within this exemption.
Even though Sally is out of luck, others who work in industries that do fall within the FLSA may sue their employer for failure to pay overtime wages. In addition, the FLSA enforces penalties on those employers who improperly classify their employees as “exempt.” Under the FLSA, an employee whose right to their wages has been violated may not only recover the back wages owed to them but also liquidated damages, and reasonable attorney’s fees and costs.
A new development in this area of the law is the question of whether undocumented workers can recover back wages for work they have done. Because this is a hotly contested issue it is important to consult an attorney should you find yourself in this situation. The Supreme Court of the United States in 2002, in Hoffman Plastics Compound v. NLRB held that undocumented workers are not able to recover back wages under the NLRA. Since this decision however, various circuit courts have found ways to enforce an undocumented workers right to be compensated for work they have done.
These courts have allowed undocumented workers to bring an action under the FLSA for unpaid wages and liquidated damages instead of the NLRA. An undocumented worker may be afraid to complain, but the FLSA says employers may not retaliate against employees for bringing an action for overtime wages. Employers who do retaliate may be fined up to $1000.00 or receive a jail sentence of up to six months. Also, under Oklahoma law, it a felony for U.S. citizens to knowingly employ illegal immigrants. Because of this, if an employer knows the worker is undocumented, he might be more willing to pay the overtime wages.
If someone is not being paid overtime wages for their work over 40 hours, they should keep records of all the time they work and save their paystubs. If there are several workers not being paid overtime, the case against the employer might be even stronger and the employees should bring one case together. It is important that workers rights are not violated. There are laws to protect workers from working without being paid for their extra time.