Unpaid Overtime Legal Help:Regular Rate Calculations, Exemption Disputes, and FLSA Recovery

All compensation paid divided by total hours worked. Includes: hourly wage, salary, non-discretionary bonuses, commissions, shift differentials, longevity pay, on-call pay, retroactive pay increases. Excludes: discretionary bonuses, gifts, payments for occasions like Christmas, expense reimbursements, premium overtime pay itself.

Fixed and recurring period of 168 hours (seven consecutive 24-hour periods). Cannot be averaged across workweeks. Employer designates the workweek. Workweek is starting point of overtime calculation.

40 hours per workweek under federal FLSA. Some states require daily overtime in addition (California, Alaska in some industries, Nevada in some). California requires 1.5x after 8 hours per day, 2x after 12 hours per day, 1.5x for first 8 hours of seventh consecutive day worked, 2x after 8 hours on seventh consecutive day.

Employee earns $20/hour and worked 50 hours, plus received $200 non-discretionary bonus that workweek. Regular rate calculation: ($20 × 50 hours) + $200 bonus = $1,200 / 50 hours = $24/hour regular rate. Overtime premium: 0.5 × $24 = $12 × 10 overtime hours = $120. (Employee already received the straight-time portion of overtime; only the 0.5 premium remains owed at the regular rate, computed on the $24 not the $20.)

Non-discretionary bonuses (production bonuses, attendance bonuses, longevity bonuses, safety bonuses, performance bonuses) must be included in regular rate. Bonus retroactively recalculated into overtime when paid. Failure to include bonuses is one of most common employer overtime violations.

Truly discretionary bonuses can be excluded. Limited to bonuses where employer retains discretion as to amount AND timing of payment AND not based on employee meeting any standard. Most 'bonuses' in practice are non-discretionary because employees expect them based on performance metrics.

Commissions are wages and must be included in regular rate. Calculated by adding commissions to other wages and dividing by hours worked. Substantial complexity for commissioned salespeople with variable hours.

Salary-based non-exempt employee can have overtime calculated at 0.5x regular rate (instead of 1.5x) when: hours fluctuate week to week, fixed salary covers all hours, mutual understanding of fluctuating workweek, salary at least minimum wage for all hours worked. Strict compliance required. Often misapplied.

DOL clarified fluctuating workweek allows additional bonuses and incentive payments beyond the salary. Previously some courts had read FW more strictly.

Specific plan for irregular hours allowing guaranteed pay for variable hours. 29 U.S.C. § 207(f). Limited use. Specific requirements.

Hospital and residential care employees can be compensated under 8/80 rule: overtime for hours over 8 per day OR 80 per 14-day period. 29 U.S.C. § 207(j). Specific industry.

Workers paid by piece must receive overtime calculated by adding piece earnings to other compensation and dividing by hours worked. Specific California regulations require separate compensation for non-productive time and rest breaks (Bluford v. Safeway).

Comp time in lieu of overtime payment is generally illegal in private sector under FLSA. Public sector employees may have comp time agreements but with specific limits. Private employers offering comp time often violate FLSA.

Workers paid daily rates can have overtime calculated by dividing total earnings by total hours and applying 0.5x or 1.5x premium depending on circumstances. Specific calculations required.

Pre-shift setup, post-shift cleanup, donning/doffing time, working through breaks, taking work home. Not paid because not officially clocked in. Common in many industries.

Failure to include non-discretionary bonuses in regular rate calculation. Particularly common with annual bonuses, production bonuses, attendance bonuses, performance bonuses.

Classifying employees as exempt who do not meet exemption requirements. Manager titles for production workers, administrative titles for routine workers. Most consequential violation type.

Workers classified as 1099 independent contractors who are actually employees under economic realities or ABC test. No overtime owed under contractor classification, but overtime owed under correct employee classification.

Private sector use of compensatory time off in lieu of overtime payment is generally illegal under FLSA. Exception: public employees with specific agreements.

30-minute meal break automatically deducted regardless of whether employee actually took break. Common in healthcare and other industries with continuous coverage. Requires actual meal break to be legal.

Improper deductions from supposedly salary-basis exempt employee defeat salary basis test, converting to non-exempt for affected period. Examples: deductions for partial-day absences, deductions for quality of work.

Shift differentials for evening/night/weekend work must be included in regular rate. Calculated as additional component of regular rate.

Failure to pay for compensable travel time. Travel between job sites, travel in employer's vehicle, travel as part of work activities.

Required training during work time must be paid. Common manipulation: characterizing required training as voluntary.

Breaks under 20 minutes must be paid time. Some employers improperly deduct.

Employer time records or your own records. Anderson v. Mt. Clemens Pottery burden-shifting when employer records inadequate. Personal calendars, schedules, communications about hours all support claim.

Show hours paid, rate, deductions. Compare to actual hours worked. Discrepancies establish underpayment.

Show non-discretionary compensation that should be included in regular rate. Employer's own classifications often determine non-discretionary status.

Compare claimed duties to actual duties performed. Critical for exemption disputes.

Employer's own descriptions of employee duties. Often inconsistent with claimed exempt classification.

Posted schedules, shift assignments. Compare to actual hours worked and pay.

Emails, texts about working hours, overtime, schedules.

Other employees doing similar work. May be classified differently or paid differently for similar work.

Documentation of activities not officially recorded. Personal records, witness testimony.

Industry-specific equipment and time required. Photographs of equipment, witness testimony, OSHA training records.