The federal Fair Labor Standards Act (FLSA) requires that employers provide time-and-a-half overtime pay to all qualified workers. The number of qualified workers is about to increase dramatically next year as a result of new rules proposed by the U.S. Department of Labor. Are you among the five million workers who will soon become eligible for overtime pay? Will your rights as an employee be recognized?

Who has been defined in the past as qualified for overtime pay? Hourly workers who are not subject to an exemption are qualified. Salaried workers who are not subject to an exemption and make less than a threshold amount in salary (currently $455 per week) OR whose primary duties are not executive, administrative or professional, each as defined by the FLSA, are qualified. For the past several decades, the percentage of salaried employees who earn above the threshold amount, and therefore are not guaranteed overtime pay, has been rising dramatically. The number grew from 35 percent of salaried workers in 1975 to 88 percent in 2015. This is because the threshold salary, below which they are guaranteed overtime pay, has not kept up with inflation.

At the direction of President Obama, the U.S. Department of Labor has proposed new rules that would raise that threshold to $970 per week. Those new rules are expected to go into effect in 2016. Once they are in operation, approximately five million workers who are currently not guaranteed overtime pay will suddenly become guaranteed those employee rights.

For example, if you are a clerk in a construction company who currently makes a salary of $800 a week and is expected to work 50 hours a week, right now you are not guaranteed overtime pay under the FLSA. Whether you are entitled to receive overtime pay depends on whether your primary duties are considered to be executive, administrative or professional under the FLSA. It will be in your employer’s interest to fit you within an exempt category—likely administrative—so they don’t have to pay you overtime. However, once the new overtime rules go into effect, you will be guaranteed to receive 10 hours a week in overtime pay because your salary falls below the $970 per week threshold. The amount you will be eligible to receive is calculated by dividing your weekly salary of $800 by 40 hours per week to obtain an hourly wage of $20 per hour. This amount is multiplied by 1.5 to determine the overtime rate of $30 per hour. Multiply this by 10 hours, and you will receive an additional $300 per week in take-home pay.

If you are working more than 40 hours a week and not receiving overtime pay, it is worth your while to take the time and effort to find out if your employer should recognize your employee rights and pay you overtime. Unfortunately, as with many government regulations, what appears on its face to be fairly straightforward is not necessarily so. The threshold salary amount is clear. Once the new rules go into effect, if you earn a salary that is less than $970 per week, you will be guaranteed overtime pay. But there are many aspects of the FSLA overtime rules that are not easy to understand and require legal knowledge and interpretation to determine whether or not your employee rights are being recognized.

First of all, to figure out whether you are qualified, you must first determine whether you are on the FLSA’s list of exempt employees, which is not always a clear-cut proposition. Then there is the matter of whether you should be considered an executive, administrative or professional employee. This is where much confusion and many disagreements arise. And finally, just because your employer says you are a salaried employee, it may not be the case under the FLSA. Even if it is the case, what amount constitutes your salary may be the subject of debate.

The bottom line is if you are working overtime and not receiving time-and-a-half overtime pay, or if you believe that your position has been misclassified, get legal advice regarding your employee rights. The employee rights lawyers at Kilgore & Kilgore are experienced in all aspects of employment law. If you are not receiving overtime pay you think you may be entitled to, or if you have any other questions regarding employment law, contact Kilgore & Kilgore. Our attorneys for employee rights are ready to evaluate your situation. Email us at dem@kilgorelaw.com or call us at (214) 969-9099 for a free review of the facts of your case with a Dallas attorney for employee rights.

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