UNPAID OVERTIME WAGES
THE MYTHS OF EXEMPT EMPLOYEES; THE TRICKS EMPLOYERS PLAY
The U.S. Department of Labor estimates that nearly 70% of all employers are operating in violation of the Fair Labor Standards Act of 1938 ("FLSA").
Ryan Scott Nalley primarily concentrates his practice in litigating cases for unpaid wages and overtime wages under the the Fair Labor Standards Act of 1938 (FLSA), the Illinois Minimum Wage Law, and the Illinois Wage Payment and Collection Act.
Under both the FLSA and the Illinois Mininum Wage an employer is required to pay his employees 150% of their regular rate for each hour worked over 40 for each working weak; otherwise known as "overtime." The Illinois Wage Payment and Collection Act is simply an Illinois Statute that requires an employer to pay an employee as promised, and helps to curtail wage theft.
It is typical for employers who wish to avoid complying with the relevant overtime laws to engage in a variety evasive tactics, such as improperly classifying employees so they appear to fall within certain exemptions from the statutes, or by disguising wages as reimbursements or bonuses--to name just a few of the less sophisticated tactics. While there are legitimate exemptions, in my experience they are less prevalent than many imagine. Moreover, it is the employer's burden to prove the employee's exempt status.
One of the most common misconceptions employees have is that if they are paid on a salary basis then they are exempt from the overtime time provisions of the ("FLSA") or the Illininois Minimum Wage Law ("IMWL") under the guise of being a "professional employee" or one of the other "white collar exemptions." This is simply not true! In reality very few positions meet the eligibility for exemption under the "white collar" exemptions. Moreover, being paid on commission or salary does not necessarilly exempt an employee from the protections of these laws.
Further, when an employee is underpaid for overtime his employer not only must compensate the employee all past due wages, but he must pay an additional equal amount in liquidated damages. Thus, an employer will owe the employee double the amount originally underpaid--unless the employer can convince the court that they acted in good faith. This is an extremely difficult burden for an employer to prove; and it can literally be said, as a matter of law, that liquidated damages are presumed.
But the biggest hits an employer takes in an FLSA or IMWL is the Collective or Class Action. Usually when an employer fails to pay one employee properly, there are others in the mist, and who are eligible to opt out of the law suit as a party Plaintiff; and this creates a strong incentive to settle to say the least, as the figures of unpaid wages and penalties often end up to be in the millions.
Additionally, both the FLSA and IMWL mandate that an employer found in violation is liable to compensate you for all costs, and more importantly attorney's fees. In many cases the attorney's fees are more the actual amount of damages the employer owed in the first place. This so even though the employee is usually not required to pay any hourly attorney's fees. Usually the employee is not required to pay any fees unless and until they collect, at which point a percentage such earnings will be paid to the attorneys. Nevertheless, the employer will still be required to pay for all the hours the attorney or attorneys have invested in the case, despite that the client was not billed for such hours. This gives the employer a huge incentive to agree to a settlement rather than risk having to pay thousands upon thousands in attorney's fees in addition to the past due overtime, liquidated damages, and costs already owed.
Despite these penalties, violations of these statutes remain extraordinarily commonplace--presumably because employees either believe they are exempt from the law, or because they know employees are too afraid of retaliation to ever to complain. However, the FLSA has extremely strict penalties to prevent an employer from retaliating against employees who assert their rights under the law. Moreover, the Illinois Whistle Blower Act also protects an employee who files a complaint against their employer.
The reason for these provisions is that enforcing the FLSA helps the economy and the country. Thus, the government encourages employees to assert their rights under the federal labor laws. Bringing suits for unpaid overtime wages is not an attack on small businesses or the struggling economy, it is quite the opposite!
If you are working over 40 hours a week and not receiving time plus one half for each hour over 40, or are otherwise are not being compensated for work performed, despite what your employer or your employee handbook claims about your status; or if you are being paid in an unecessarilly complicated and strange manner you might very well be owed overtime wages.
Either way, you have nothing to loose by calling the Law Office of Ryan Scott Nalley for a free telephone consultation!
(312) 523-2168 (Office) (773) 621-6809 (Cell)
nalley@ryannalleylaw.com