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How to win an overtime lawsuit

Unpaid overtime cases arise under the Fair Labor Standards Act (“FLSA”), the federal law that generally provides for time-and-a-half overtime pay.

To win an unpaid overtime case, you must prove three (3) basic elements by preponderance of the evidence:

(1) who was employed by the defendant during the time involved;

(2) that their work was engaged in the trade or production of goods for the defendant’s trade or business or businesses under unified operation or common control employed at least two people and was engaged in the trade or production of goods for the defendant trade and had an annual gross sales of at least $ 500,000; and

(3) that the defendant did not pay the overtime required by law.

Engaged in trade

The term “commerce” has a very broad meaning and includes any commerce, transportation, transmission, or communication between any state and anywhere outside the state.

Examples of employees who are “involved in commerce” under the Fair Labor Standards Act include anyone who uses a telephone, fax machine, US mail, or computer email system to communicate with people in another state. In addition, it also includes employees who use electronic devices that authorize credit card purchases. As you can see, the definition is very broad and is determined on a case-by-case basis.

Calculation of the overtime rate

The Fair Labor Standards Act generally requires an employer to pay its employees at a rate of at least one and a half of their regular rate for time worked in a workweek of more than forty hours. This is commonly known as time and a half pay for overtime work.

An employee’s “regular rate” during a particular week is the basis for calculating overtime pay due for that week. The regular rate for a week is determined by dividing the first 40 hours worked by the total salary paid for those 40 hours. The overtime rate, then, would be one and a half of that rate and would be due for every hour in excess of 40 hours worked during the workweek.

Exemptions under FLSA

Most employers justify not paying overtime by claiming an “exemption.” Probably the most common exemptions are executive and administrative exemptions, but there are many more.

To receive the benefit of a executive exemption, the defendant must prove that his primary duty was to manage the business or business department. For example, a CEO would likely be exempt under the FLSA, if he directed the work of at least two or more employees and had the authority to hire or fire other employees, or his suggestions and recommendations regarding hiring, firing, the ascent. , promotions or any other change of status of other employees received a special weight.

To receive the benefit of a administrative exemption, the defendant must prove that your primary duty was the performance of a job directly related to the management or general business operation of your employer and that you exercised discretion and independent judgment with respect to matters of importance. An office manager may qualify for the administrative exemption.

When determining whether or not you are an exempt employee, it is important to remember that it is the work you actually performed that matters, not your written job description. In other words, if your job description indicates that you are a manager, but your primary duty is that of a front desk clerk, you are likely not exempt and you are owed overtime. As you can imagine, these types of cases are highly fact-dependent and vary from case to case.


The measure of damages or money under the FLSA is the difference between what should have been paid to you under the law and the amount that was actually paid to you. This is called a back pay. Damages are not allowed as punishment and cannot be imposed or increased to penalize your employer.

Finally, if you are successful in winning your case under the FLSA, you may be entitled to compensation for damages (double late payment) and reasonable attorney’s fees.

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