Unpaid Overtime and Wage and Hour Claims
The relationship between an employee and employer is built upon trust. Employers must trust that their workforce is performing job duties to the best of their abilities, while employees must trust that they will be compensated in accordance with the Fair Labor Standards Act (FLSA). Occasionally that trust is broken, but violations of the statute are enforceable in court.
New Jersey Minimum Wage
The minimum wage guaranteed by the FLSA is currently $7.25 per hour, but New Jersey residents enjoy a state-mandated minimum wage of $8.60 per hour. Some positions – such as a hairdresser or waiter – may pay a significantly lower hourly rate, but should reach the state threshold via tips. When tips fail to bring an employee to $8.60 per hour, however, an employer must bridge the gap. An employer’s failure to bring an employee’s hourly salary up to the New Jersey minimum wage can trigger legal action, as can the common practice of forcing tipped employees to clock out when business is slow.
Tip skimming is another common but illegal practice in the restaurant industry. Tip skimming occurs when restaurant owners or managers unlawfully take a portion of employees’ earned tips. Because many employers try to conceal their unlawful actions under the guise of “tip pooling” or charging for “meal credits”, workers may not be aware they are being cheated out of money they have rightfully earned.
Overtime Violations Occur Frequently, but Must be Reported
Employees also frequently invoke the FLSA when they have worked an excess of 40 hours per week but were either unpaid for their overtime or paid less than the time-and-a-half they are guaranteed under the statute. Employers have proven adept at developing strategies for evading their overtime pay requirements; however, the law is firmly on the side of employees.
To that end, pre-shift and post-shift work must be counted towards a worker’s weekly hours. Such work can include a roll call or time spent preparing a work environment prior to the official start of the work day. Additionally, some jobs require special gear or a uniform that can only be donned or doffed on-site. Employees are able to count this time towards their weekly number of total hours worked. Employers are also barred under the FLSA from automatically deducting a lunch break from an employee’s schedule when the employee did not take one, and docking a worker for short breaks of less than 20 minutes.
Overtime Requirements Differ Amongst Positions and Industries
Exemptions to the FLSA’s overtime requirements do exist, however. Certain classes of workers – including those who work on commission, domestic workers who reside with their employer, and farmworkers – may not be entitled to time-and-a-half for working in excess of 40 hours per week. Furthermore, those who work in a hospital or residential care facility often have separate overtime requirements. Typically, such workers must be paid overtime premium pay for all hours worked in excess of eight each day, or when working more than 80 hours in any 14-day period.
Some employees are improperly classified as executives or managers – another worker class exempt from overtime pay under the FLSA. In order to qualify as an executive or manager an employee must have at least two full-time direct reports, as well as the ability to hire and fire. Without such authority, an employee in all likelihood is non-exempt and entitled to overtime pay.