Misclassifying Employees as Exempt Motor Carriers 

Misclassified Employees May Include

• Newspaper sales managers
• Small package delivery drivers
• Cable television installers
• Satellite dish installers
• Appliance repairmen
  

Failing to Pay Pre-Shift and Post-Shift Activities 
Many workers are required to pick-up, wait for, put on, clean, or maintain required clothing or gear that is necessary for the performance of their jobs.  Other workers must attend pre-shift meetings, perform pre-shift exercises, complete job-station “pass-downs,” or ready machines or computers at the start of the workday.  Workers generally are entitled to be paid for all time accrued between their first and last job-mandated activity.

Pre-Shift and Post-Shift Activities May Include

• Meat and poultry workers who wear sanitary and safety gear
• Other food processing workers who wear sanitary gear
• Metal processing workers who wear safety gear
• Manufacturing workers who perform pre-shift exercises
• Warehouse workers who pick-up inventory tracking devices
• Call center employees who log in to computer systems
• Laborers who report to headquarters before traveling to the job site
• Salespeople who complete post-shift paperwork
• Insurance appraisers who complete reports after hours
• Police officers, security guards, or prison guards who attend pre-shift meetings
• Asbestos abatement workers who wear protective gear
• Pharmaceutical, chemical, and medical manufacturing employees
  

Failing to Pay Overtime to Employees Paid on a Job-Rate Basis 
Many employees are paid a fixed rate per job completed.  Contrary to popular belief, such workers generally are entitled to overtime premium pay for hours worked over 40 during the workweek.  The “time-and-one-half” overtime rate is determined as follows:  Divide the worker’s total pay for the week by all hours worked.  This calculation results in a regular hourly pay rate for the workweek.  The worker then is entitled to an overtime premium bonus equaling one-half the regular rate for every hour worked over 40 during the workweek. 

Employees Paid on a Job-Rate Basis May Include

• Cable television installers
• Satellite dish installers
• Appliance repairmen

Allowing Work During Meal Breaks
Some companies allow workers to perform work during meal breaks or require workers to be on-duty during the meal break.  But, under the law, it is the company’s responsibility to ensure that workers do not perform work related duties during meal breaks.  In addition, employees, such as private security guards, who are required to be “on-call” and to remain on the premises throughout their meal break, generally are entitled to be paid for this time.
Deducting for Rest or Meal Breaks of Less than 20 Minutes:  Generally, workers must be paid for scheduled rest or meal breaks of less than 20 minutes.  Yet, some companies make illegal deductions for such breaks.

Independent Contractors 
Some companies refuse to pay workers overtime by calling them “independent contractors” instead of “employees.”  But whether a worker truly is an independent contractor depends on the specific, real-life circumstances of his employment. A worker is not an independent contractor just because the company says so.

Workers Misclassified as Independent Contractors May Include

• Package delivery employees
• Custodial workers
• Cable television installers
• Satellite dish installers
  

Failing to Include Commissions, Shift Differential Pay, and Other Monetary Payments in the Overtime Calculation 
Workers who work over 40 hours generally are entitled to overtime pay equaling one-and-one-half times their regular rate of pay.  Many workers, however, receive commissions or shift differential payments in addition to their hourly pay.  In calculating the time-and-one-half overtime premium, most commissions or shift differential payments must be included in the worker’s regular pay rate, and the worker’s overtime premium must be calculated based on this enhanced regular pay rate.

Workers Who May Be Entitled To Commissions In Addition to Hourly Pay

• Automotive technicians and mechanics
• Tire center technicians

Averaging Long and Short Workweeks 
Workers generally are entitled to “time-and-one-half” overtime pay for all hours worked over 40 in a single workweek, which is defined as a period of seven consecutive days.  Companies generally cannot avoid paying overtime by averaging a “long” workweek with a “short” workweek.  For example, if a worker works 48 hours in one workweek and only 32 hours in the next workweek, she usually is entitled to 8 hours of overtime pay for the first workweek. It does not matter that the first 48-hour week and the second 32-hour week “average out” to two 40-hour weeks.

Applying Rounding Rules that Regularly Shortchange Employees 
Some companies who use a time clock or other employee punch-in or sign-in system consistently round workers’ start and end times down to the nearest half or quarter hour.  Such rounding practices generally are illegal and can result in substantial underpayment  

Compensatory Time
Most hourly employees not employed by the government are entitled to a monetary payment for overtime work.  This overtime pay must be calculated at 150% of the employee’s regular rate of pay.  It generally is illegal for private sector employers to pay non-monetary “compensatory time” (or “comp time”) benefits instead of money.

Some companies contend that workers who drive vehicles as part of their job duties are not entitled to overtime pay under the “motor carrier” exemption to federal and state overtime laws.  However, in order to fall within this exemption, the worker generally must either (i) drive a vehicle weighing in excess of 10,001 pounds or (ii) transport hazardous materials requiring placarding under federal Department of Transportation regulations.  Thus, individuals who drive their personal automobiles or drive vans or pick-up trucks generally are entitled to overtime pay. 

Seek Qualified Legal Representation
If you feel your wage and overtime rights have been violated in the workplace contact the employment lawyers at the National Justice Coalition to be connected with an attorney in your area who can evaluate your case.