Overtime Law: Getting What You Earned
Many employers fail to pay overtime to their workers that work over forty hours per week. Payment for overtime is time and a half the hourly wage that the worker normally earns. The following three areas are the major areas of violations of this law. These areas are where most employers fail to follow the law.
1. Misclassifying Salaried Employees
Only certain types of employees are not entitled to overtime. Just because an employee earns a salary or is a manager or supervisor does not mean the employee is not entitled to overtime. This depends, among other things, on the amount of discretion the employee exercises in his or her job. If the employee is not supervising other employees, is not an outside salesperson, does not have a professional license or degree, and is not making significant decisions that substantially affect the business, the employee is likely entitled to overtime pay, even if that employee is salaried. The most common jobs that employers misclassify as not entitled to overtime are those with higher salaries, including computer programmers, store managers, MIS help desk workers, and inside salespersons.
2. Providing Comp Time Instead of Overtime
Many employers provide comp time instead of overtime pay that they are entitled to. This is illegal.
3. Working Off the Clock
Employers often assign employees more work than can be done in forty hours but will not allow the employee to write down overtime hours. When the employee stays late or takes work home, the employee is entitled to overtime pay if the employer is aware of the employee doing this.
Some companies have been prosecuted for “clocking-out” employees and requiring them to continue working. Another example is when employees are required to meet several minutes before their shift and this time is not counted. These acts are illegal.
Sexual Harassment: A Difficult Standard
An employer is not permitted to harass an employee on the basis of the employee's sex, national origin, race, religion, or disability. *Note: This description will refer primarily to sexual harassment because that remains the most common type of harassment, but the concepts discussed apply to all types of harassment. Courts hold employees to a very high standard before they may recover for sexual harassment. A simple offensive comment, rejected advance, or inappropriate hug or touch is seldom enough. The conduct must be severe and pervasive. Moreover, unless the harassing conduct is an action actually relating to the terms of employment (an "official act"), the employee must complain to the employer about the harassment and continue to be subjected to that sexual harassment, assuming the employer has a publicized sexual harassment policy (as most now do).
Harassment that is not based upon sex, national origin, race, or disability is usually not illegal. It is not illegal for a supervisor to be mean, unfair, or hostile - being a bad boss is not against the law. Only if that unfairness, meanness, or hostility is because of the employee's membership in a protected class does the employee have a right to sue (except in very rare circumstances of extreme and outrageous behavior). Unfortunately, there is not a legal right corresponding to every moral wrong.
The most common type of harassment remains sexual harassment. We have seen this occur most commonly in workplaces traditionally dominated by males. More recently, we have seen more cases of employees harassed by their employer because of their national origin or religion, particularly among persons of Middle Eastern descent or Muslim faith. There also continue to be occasional instances of racial harassment.
How to Respond
The most important step an employee can take to stop sexual harassment is to complain to his or her supervisor or to the person designated in the employer's sexual harassment policy. This puts the company on notice and may stop the harassment without the necessity of involving an attorney or the courts. Where possible, this complaint should be made in writing, and it should always state that the harassment was based upon the employee's age, race, sex, national origin or religion. Without ever having filed such a complaint, it is very difficult to recover for harassment.
If you have been a victim of sexual harassment or other illegal harassment by your employer, it is important that you complain quickly. If the harassment continues, it is important that you seek legal help quickly. The quicker we can become involved, the more legal rights you will retain.
What Constitutes Discrimination?
Discrimination is generally not actionable unless it falls into one of the following categories:
- Age discrimination
- Gender discrimination
- Race discrimination
- National origin Discrimination
- Religious discrimination or failure to provide a religious accommodation
- Pregnancy discrimination
- Disability discrimination or failure to reasonably accommodate a disability
For an employee to prevail on an employment discrimination claim, the employer must usually take some tangible action against the employee, such as a termination or demotion. Moreover, the action must be taken because the employee is a member of a protected class. Thus, an employee will seldom prevail in suits where the employer is simply "unfair" or doesn't like that employee. Instead, to prevail, the unfairness or dislike must be because of the employee's age, gender, race, national origin, or disability. Courts often state that an employer may terminate an employee for a good reason, a bad reason, or no reason at all, as long as it is not for a discriminatory reason. Unfortunately, there is not a legal right for every wrong done by an employer, especially here in Alabama.
How to Prove Discrimination
Two types of evidence typically allow an employer to prevail on an employment discrimination claim. The strongest cases are where the person making the decision to take action against the employee makes a racist, sexist, or ageist comment concerning the employee or the employment decision. There have been numerous cases where the employer states that the company needs to become younger or states that an aging executive is becoming slower in his old age. These types of comments also occur with respect to people of different national origins, especially Arabs and other persons from the Middle East. Women are also often the subject of derogatory remarks evidencing discrimination, such as comments regarding the likelihood that an employee will become pregnant.
The other type of evidence commonly supporting discrimination claims is an employer taking action against a protected employee for doing the same thing a non-protected employee did without consequence. For example, an employer might terminate a female employee for not meeting a sales quota while retaining male employees in the same position who fell even shorter of their quota.
The above is not legal advice. That can only come from a qualified attorney who is familiar with all the facts and circumstances of a particular, specific case and the relevant law. See Terms of Use.
Guster Law Firm, LLC located in Birmingham, Alabama, represents clients throughout Birmingham, Huntsville, Montgomery, Tuscaloosa, Florence, Gadsden, Mobile, Dothan, Auburn, Jefferson County, Madison County, Montgomery County, Tuscaloosa County, Shelby County, Talladega County, and surrounding communities