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Both the Fair Labor Standards Act (FLSA) and the Illinois Minimum Wage Law (IMWL) require employers to pay “non-exempt” employees 1 ½ times their regular hourly rate when they work more than 40 hours in a workweek.
Significantly, most employees are covered by overtime laws and are considered “non-exempt” since it is often difficult for employers to meet the narrow requirements for the administrative, professional, executive and other exemptions. As a result, those employees who are not specifically exempted from federal and state wage laws must receive overtime pay when they work more than 40 hours per week.
If you have worked more than 40 hours in a week and believe you may not have been paid all of your overtime wages, please contact the Nolan Law Office immediately to set up a free consultation. You may be eligible to recover your unpaid overtime wages as well as liquidated or “double” damages, interest, and attorneys’ fees and costs.
If you are a tipped employee, see our additional information about tipped employees' rights to overtime.
Common Overtime Violations
Payment of Straight-Time Wages for Hours in a Workweek over 40 Hours
Businesses routinely violate federal and state wage and hour laws by continuing to pay their employees at their normal hourly rate when the employee works more than 40 hours in a workweek. For every hour worked over 40 in a single work week, employers must pay non-exempt employees overtime at the rate of one and one-half times their regular hourly rate. For example, an employee who earns $10.00 per hour and qualifies for overtime pay must be paid at the rate of $15.00 per hour for all their hours worked over 40 in a single workweek.
Willful Concealment of Overtime Wage Violations
Many employers unsuccessfully attempt to conceal their violation of overtime laws by relying upon a number of illegal pay schemes. Perhaps most commonly, some employers pay the first 40 hours of an employee’s workweek in check and pay the remaining overtime hours in cash. Other employers elect to pay all of an employee’s wages in cash in hopes of keeping the employee’s pay status “off the books.” In both situations, the employers is failing to report wages, and also likely violating federal and state recordkeeping requirements. Finally, some employers create an “alias” or second identity for employees who work overtime hours in the hopes that the two different identifies will conceal their overtime pay violations.
Salary for Workweek Exceeding 40 Hours
An employer does not satisfy its FLSA overtime obligations by paying a non-exempt employee a fixed salary for working more than 40 hours in a workweek. For example, an employer who pays a weekly salary of $450 to an employee who works 45 hours per week must also may an additional overtime premium to the employee when he or she works more than 40 hours in a workweek. In this example, the employee’s regular hourly rate of pay is calculated by dividing the employee’s weekly salary ($450) by the hours worked (45), which equals an hourly rate of $10.00 The employee is then due overtime in the amount of $25.00 for each workweek ($25.00 = 5 overtime hours x $5.00 overtime premium). Learn more about employees who are misclassified as salaried but who, legally,should be receiving overtime pay.
Fixed Sum for Varying Amounts of Overtime
An employer also does not meet its overtime obligations by paying a fixed sum to an employee for overtime work without taking into account the number of overtime hours worked. The lump sum payment will not qualify as an overtime premium even though the amount of money paid is the same or greater than the sum owed on an hourly basis.
Overtime Pay May Not Be Waived
An employee cannot waive or release his or her right to overtime pay through a private agreement with an employer. Employers who attempt to coerce their employees into “signing away” their overtime rights are likely to be found liable for a “willful” violation of the FLSA, and discover that the waiver or release is completely unenforceable. Likewise, an employer cannot prohibit an employee from recovering overtime pay simply by mandating that no overtime work will be allowed, or that overtime work will be paid unless authorized by the employer beforehand.
If you are an Illinois employee who suspects your right to receive overtime wages has been violated, contact our Chicago employment attorneys to set up a free consultation.
