Help! My Employer Owes Me Unpaid Overtime

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Matt Dolman:

Welcome to episode number 10 of the Dolman Law Group Podcast. I'm Matt Dolman, principal owner and managing partner of the Dolman Law Group here in Clearwater, Florida. Today I have my employment law attorney at our firm, Trescot Gear, Mr. Gear, say hello to our audience.

Trescot Gear:

Matt, how's it going?

Matt Dolman:

It's going great. Splendid day here in Clearwater. It's beautiful outside. We're going to discuss unpaid overtime today. Take us through what exactly is, first off, what is unpaid overtime? I understand as a concept is pretty self-explanatory, but who is really eligible for it, and when do you really have a case?

Trescot Gear:

Can I go with a bird's eye view of unpaid overtime? Almost everyone generally has an idea of what overtime is. It's when you've worked a certain amount of hours per week, once you exceed that threshold, then you get paid time and a half. You're making 15 bucks an hour. All of a sudden you're making 22.50 for those hours over the threshold. Now, most people, if they work over 40 hours week, they're all of a sudden looking their paycheck and going, "Hey, should I be getting time and a half for all these hours I worked over 40 per week?" Now, over time is not a one size fits all policy. Over time depends on different factors, depends on how much you make in a given year, how much you make in even week, what type of job you actually perform, what are your duties, do you happen to have people who work underneath you? It's all a very complex pie that needs to be baked. But the first step is determining whether you're even eligible.

Matt Dolman:

Okay. I know we discussed, before you get into that in a previous episode, independent contractors versus employees. And it's an important distinguishment in report criteria, and viewing unpaid overtime.

Trescot Gear:

t, we talked last time, about: 1099

Matt Dolman:

Sure.

Trescot Gear:

Both are technically eligible for overtime, but it just depends on this, what we call, the duties test. I can't say the blanket statement that, "Hey, if you are an independent end contractor for a machine company that you're eligible for overtime." Anymore than I can say that someone who's a nurse is eligible for overtime. Each different occupation carries its own exemptions and non exemptions. But no, just because you happen to be a certain tax classification, does not eliminate you from the possibility of getting unpaid overtime.

Matt Dolman:

Okay. So what are the classifications? What's the salary threshold? Who is limited?

Trescot Gear:

So typically, according to the Department of Labor, which is the federal agency that regulates overtime in wages, you have to have made less than $455 per week, which averages out to about $23,000 or so per year. At that point, you are eligible for overtime. Any hours over 40 per week, you get time and a half. And that's over 40 per week. Employers sometimes will try and get dodgy with it, and try and claim it's 80 hours over two weeks. But no, each independent work week, the 168 hours in a given week are treated as independent units for the purposes of counseling overtime. If you happen to make over that amount, it doesn't mean that you're ineligible for overtime, but it then goes to a different test. It's the administration professional and other kind of exemptions.

Trescot Gear:

This basically means that if you are, for instance, a lawyer doctor, we just had a doctor on the last podcast. He is completely ineligible for overtime, no matter if he made $15,000 a year or he made $150,000 per year.

Matt Dolman:

Okay.

Trescot Gear:

If you are a professional employee, or you have known your business, whatever the case may be, you are not eligible for overtime. Your employer can work you to the limits of the law as long as he's paying you the reasonable wage, which in this case, minimum wage is about $7.30 right now, as long as you're being paid at least minimum wage. And as long as you're at least getting a 12 hour non continuous break every seven days, you're all good from that front as an employer.

Trescot Gear:

But when you are a person seeking unpaid overtime, you have to look and see, are you in position in your company where you are managing people? Are you the head of a department? Or if you're not the head of a department, do you have a series of people who are answering to you? Who are at your beck and call so to speak. The law is going to say that you are not eligible, you are exempt, and the word is exempt.

Matt Dolman:

So, do you have subordinates?

Trescot Gear:

Yes. You're going to be likely to be exempt. I can never say 100% certitude, because each case has it's own unique... It's why you should come to Dolman Law Group, we'll go through exactly what you do every day, determine the validity of your claim. But it's likely that you're going to be exempt. And that's the key. As opposed to saying eligible, or non, we say exempt and non-exempt when it comes to overtime parlins.

Matt Dolman:

Okay, what are my rights? So I'm a victim of not being paid properly my overtime wages, what can I do? What's the steps in the case? What am I looking at?

Trescot Gear:

st,: 2018

Matt Dolman:

It's not a defense, yes we know that.

Trescot Gear:

Matt knows that firsthand. So you probably get about two years pulled back for the time that you file your lawsuit, which is why times of the essence. Every day that you delay, may be costing you a 100 bucks, 200 bucks at a time. So what you're looking at, is you're looking to file usually in federal court because it's a violation of the FLSA, which is a Fair Labor Standards Act. That's a federal law that protects people from minimum wage violations and unpaid overtime violations. The beauty about filing under the FLSA, and we love this word, is attorney's fees. There's an attorney's fees provision inside the statute.

Matt Dolman:

That's how we get paid.

Trescot Gear:

Exactly. And there's also liquidated damages, which are also the chi ching word for any attorney.

Matt Dolman:

Oh yeah.

Trescot Gear:

It's liquidated damages, which are double the usual damages that you are seeking in this action. You can also potentially get punitive damages. You're almost never going to get punitive damages. That's the equivalent of an employer knowing that they violated the DOL, and then just throwing that book in a furnace, and claiming that-

Matt Dolman:

So it must be egregious?

Trescot Gear:

Yeah, it must be completely egregious. So you're almost never going to get that. It does stand to gain that there is some good stuff to get from an unpaid overtime suit. Now, when you file the suit, the employer's going to say two things, they're going to claim either that you were an exempt employee all the time and therefore your case has no merit, or in the more likely situation, they may agree that they owe you overtime, but the hours you've alleged are different. The problem that a litigant comes into play here, they don't usually have access to all their time sheets, all their time cards, all their stubs. So they have to estimate initially how many hours.

Matt Dolman:

How off are they, usually?

Trescot Gear:

I've litigated nine different cases in federal court right now, and they're usually off by 200 to 500 hours, which could be in the $10,000 to $15,000 range of error.

Matt Dolman:

The undervalue or overvalue?

Trescot Gear:

They almost always over overvalue.

Matt Dolman:

would assume it's [crosstalk: 00:08:32

Trescot Gear:

overtime, you as a [inaudible: 00:09:20

Matt Dolman:

Do these ever become class actions if it's across the board, or this is habitual? I'm sure if they do it to one employee, it's not the only loan individuals.

Trescot Gear:

No, of course, we go into class actions. What were the terms from law school, numerality, typicality, commonality, all the common claims that predominate. You typically need 25 people for a class.

Matt Dolman:

Correct.

Trescot Gear:

I believe you could enter it, but I'm not going to say that I know for... Or I am 100% certain.

Matt Dolman:

Do these often turn into classes though?

Trescot Gear:

They do in major corporations.

Matt Dolman:

Okay.

Trescot Gear:

Especially if it's the same class of employee, aka, they are all data encoders, and they all happen to be underpaid by a significant amount. It's harder in smaller companies where each people have diffuse responsibilities to get a class. But you'll see a class when it's a bunch of truck drivers, because drivers are oftentimes eligible for overtime. Laborers are eligible for overtime. People who do non-skilled... I don't use non-skilled in any sort of pejorative sense. But different kinds of trades are potentially eligible for overtime. As a whole gamut and we, the Dolman Law Group can assist in figuring where you fit in the spectrum.

Matt Dolman:

Case by case.

Trescot Gear:

Case by case.

Matt Dolman:

Okay, so what can be gained from the lawsuit itself?

Trescot Gear:

You can gain compensatory damages, which are the damages to the amount of unpaid overtime you would've received, but for filing the lawsuit. You can get your fees and costs covered. You can get your liquidated damages, and the unlikely punitive damages. So say you file a case for $20,000 in unpaid overtime, you could stand to gain upwards of $60,000 once you account for liquidated damages and the fees and costs, et cetera. So it's probative of you to get this thing filed in an expedient fashion.

Matt Dolman:

Okay.

Trescot Gear:

Because you don't want to risk.... You're trying to pull a third year back of unpaid overtime, the employer has now dissolved or been liquidated, or something happened in the billing process, you don't want to create more hassle for yourself as litigant when you already are in a massive hassle when it comes to federal court litigation.

Matt Dolman:

Sure.

Trescot Gear:

Now there are state overtime laws too. So in Florida, there are also state overtime laws. The way it works is like the supremacy clause of the constitution. The federal government creates a floor of rights. States are allowed to exceed the floor to protect people. When the two laws are... What's the term?

Matt Dolman:

Conflict.

Trescot Gear:

In conflict, the court will support whichever law grants overtime to the litigant of the two conflicting laws. In Florida, as you can imagine, being an employer friendly state, we don't have nearly as many overtime protections, which is why you have not just file under federal law. Federal law gives you the greatest suite of rights available to you.

Matt Dolman:

And do they ever fight federal court or transfer venue?

Trescot Gear:

I almost never see it removed in a state, to state court. Once you file federal, employers like that only because-

Matt Dolman:

Expedited.

Trescot Gear:

It's expedited, it's a lot more professional in federal court. The judges let the attorneys do all the leg work, so to speak. But there's no BS in federal court.

Matt Dolman:

Yes.

Trescot Gear:

You don't see the games that... Half my opposing council are now just playing games day to day.

Matt Dolman:

In state court, yeah.

Trescot Gear:

In state court. It drives me insane.

Matt Dolman:

Yeah. Federal court's a lot more strict.

Trescot Gear:

Yes.

Matt Dolman:

Well, I appreciate it. We pretty much ran the gamut of everything we need to know about unpaid overtime or at least what our consumers will need to understand in order to decipher if they have a potential case, or potential claim, how do we reach you?

Trescot Gear:

You can reach us either through the Dolman Law online portal in which you can talk to a Dolman representative, suss out if you may have a case. We usually provide free consults for unpaid overtime here at the Dolman Law Group. My personal number is 855 gear law. You can reach me at gearlawllc.com as the Of Counsel attorney here. And we stand by ready to assist.

Matt Dolman:

Well, thank you again for listening to episode number 10 of the Dolman Law Group Podcast. I'm Matt Dolman. That was Trescot Gear. Have a great day.

Trescot Gear:

Thank you, sir.

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