Both federal and state law provide many protections for workers. One of the most important of such protections is the employer’s obligation to pay overtime if the employee works more than 40 hours in a standard work week. Both federal and state law contain a number of exemptions to this requirement, and employers often attempt to classify their employees in ways that will support an exemption from the mandatory overtime provisions.
The basic rule
Every employer is required to pay each employer mandatory overtime for every hour worked in a week in excess of 40. The rate of pay must be equal to one-and-a-half of the employee’s standard rate of pay. If an employee’s rate is $20.00 per hour, the employee must be paid $30.00 per hour for mandatory overtime work.
Many different types of employees are exempt from the mandatory overtime provisions of both the Federal Fair Labor Standards Act and the Colorado version of the statute. Perhaps the most common type of exemption is the one that applies to independent contractors. Employers often attempt to classify employees as independent contractors to obtain an exemption from the mandatory overtime provision of the FLSA. However, in many instances, these attempts falter on the fact that the exact nature of the employer-employee relationship does not support the classification of the employee as an independent contractor. The United States Supreme Court has said that each case must be judged on its own merits. The independent contractor must have his own business and that business must independent of the employer’s business.
Another attempted dodge is classifying employees as members of management. This is often attempted by giving the employee a misleading title that includes words such as “manager,” “supervisor,” or “director.” For this classification to be valid, the employee must
actually participate in the setting of company policy and in establishing the future operations of the company. Again, the mere use of factually unsupported titles does not support an exemption.
Not receiving overtime pay?
Anyone who believes that they may not be receiving overtime pay in accordance with either the state or federal law may wish to consult an experienced employment attorney for advice on the provisions of the statute and enforcement regulations. A successful lawsuit for the payment of mandatory overtime entitles the employee to recover attorneys’ fees from the employer.