Off-The-Clock Violations
Off-the-clock violations occur when employers compel hourly, non-exempt employees to work without compensation. Typically, these claims arise when an employer maintains a strict no-overtime policy but the employee workload/requirements simply do not allow for all required work to be completed during the regularly scheduled shift.
Examples of off-the-clock violations include tasks such as checking in/out equipment needed to perform your job duties prior to clocking in, undergoing lengthy security procedures, attending pre-shift meetings, and performing job-related duties outside of paid hours before the start of your shift and/or after the end of your shift. These policies and practices not only violate federal and state laws but also frequently lead to class action lawsuits.
If you believe you have not been paid for your work, we can help.
Work During Meal/Rest Breaks
Off the clock work can also take place during the workday but when an employee is not clocked-in to the time keeping system. This frequently occurs during a supposed meal and/or rest break. Employers typically require employees to clock-out during their meal breaks but do not fully relieve their employees of all work duties.
Examples include when a security guard is expected to remain vigilant during a meal break or when a health care professional is required to carry a smart device and respond to emergencies while on break.
Rounding of Time
Time clock rounding is a process used by employers to simplify payroll processing. The most common procedure is to round time to the quarter hour or in seven minute increments.
For example, the clock time of 7:46 to 7:52 is rounded back to 7:45. Clock time of 7:53 to 7:59 is rounded up to 8:00. Clock time of 8:01 to 8:07 is rounded back to 8:00. Clock time of 8:08 to 8:14 is rounded up to 8:15.
The employer must be able to show that the rounding is neutral in its impact on the employee and demonstrate that the employee is fully compensated for all hours worked. Moreover, in states such as California, rounding of meal periods is illegal.
If your employer has a rounding policy and you believe you have not been fully compensated for all hours worked, or have questions about the distinctions between federal and state laws specific to off-the-clock and time rounding, we can help.
Misclassification
There are two common types of misclassification: exempt versus non-exempt and employee versus independent contractor.
Exempt versus Non-Exempt
This type of misclassification arises when employers incorrectly classify employees as “exempt” from overtime when, in actuality, the employee should be paid overtime for all their overtime worked. Frequently, employers pay a base salary, expecting employees to work beyond standard hours without proper compensation. Employees who are commonly misclassified include IT workers, salespersons, and healthcare workers.
If you receive a salary and work overtime, it’s crucial to scrutinize your classification because you may be entitled to recover unpaid overtime wages for misclassification. However, there are some common exemptions from overtime pay requirement for Executive, Administrative, Professional, Computer, and Outside Sales employees based on the following criteria:
Executive Exemption
Criteria: (1) Compensated on a salary basis (not less than $684/week), (2) primary duty of managing the enterprise, (3) regularly directs the work of two or more employees, and (4) has authority in hiring or firing decisions. If you do not meet each of these minimum criteria, you may be misclassified leading to potential owed overtime.
Administrative Exemption
Criteria: (1) Compensated on a salary basis (not less than $684/week), (2) primary duty of office or non-manual work related to management or business operations, and (3) exercises discretion and independent judgment. If you do not meet each of these minimum criteria, you may be misclassified leading to potential owed overtime.
Professional Exemption
Criteria: (1) Compensated on a salary basis (not less than $684/week), (2) primary duty requires (a) advanced knowledge in a field of science or learning customarily acquired by advanced schooling (i.e., doctors, lawyers) or (b) involves invention, imagination, originality, or talent in a recognized field of artistic or creative endeavors (i.e., writer, graphic artist). If you do not meet each of these minimum criteria, you may be misclassified leading to owed overtime.
Computer Exemption
Criteria: (1) Compensated on a salary basis (not less than $684/week or hourly basis of not less than $27.63/hour), (2) primary duty of (a) application of systems of analysis techniques and procedures, including consulting with users to determine hardware, software, or system function specifications, (b) design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; (c) design, documentation testing, creation, or modification of computer programs related to machine operating systems, or (d) a combination of these duties, the performance of which requires the same level of skills. If you do not meet each of these minimum criteria, you may be misclassified leading to owed overtime.
Outside Sales Exemption
Criteria: (1) Primary duty of (a) making sales (as the term is defined under the law) or (b) obtaining orders or contracts for services or for the use of facilities for which consideration will be paid by the client or the customer and (2) be customarily and regularly engaged away from the employer’s place or places of business in performing the primary duty. If you do not meet each of these minimum criteria, you may be misclassified leading to owed overtime.
Understanding these exemptions is crucial to ensuring proper classification and protecting your rights. If you suspect misclassification, you may be entitled to recover unpaid overtime wages. We can help.
Employee versus Independent Contractor
This type of misclassification occurs when employers incorrectly classify employees as independent contractors when they are actually employees. This is a serious problem because a misclassified employee may not receive the proper minimum wage or overtime premium pay they are entitled to under federal and state law.
There are distinct tests under federal and state law that determine whether a person is an employee or independent contractor. Some factors these tests consider are: whether the person is working for themself or another, whether the person can decide for themselves what work to perform and how and when to perform the work, whether the person provides their own tools and materials for the work or someone else provides the tools and materials, whether the person makes their own business decisions or whether someone else makes business decision related to the work, among other criteria. Simply signing an independent contractor agreement does not make you an independent contractor.
Understanding the distinct tests under federal and state law and the criteria applied to the law is crucial to ensuring proper employee versus independent contractor classification. If you suspect misclassification, you may be entitled to recover unpaid compensation and overtime wages. We can help.
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