Overtime Pay: Collecting After a Layoff
If you are laid off from your job, your former employer may treat you as if you don’t matter anymore. If he owes you back overtime pay, however, he is not legally entitled to simply ignore you. If you were laid off, your former employer must settle accounts with you within six days of your actual date of termination, including payment of all overtime pay.
As long as you are eligible for overtime (as long as you are not an independent contractor or an exempt employee), you are entitled to 1.5 times your regular hourly wage for every hour you work that exceeds 40 hours per week. If you are on a salary, your salary will have to be broken down into an hourly wage to calculate overtime. The rules are slightly different for tipped employees.
Your employer might offer one or more of the following excuses commonly used to avoid paying overtime:
- “Your severance package includes all back pay:” maybe it does, and maybe it doesn’t. Severance pay doesn’t necessarily include overtime pay. Look closely at your severance agreement to see if any or all of your overtime pay was included. Even if you have no written severance agreement, enforcement of your rights might not be unreasonably difficult. Of course, if your severance pay is not enough to cover your overtime pay, there is no way your employer could be telling the truth.
- Misclassifying you: Your employer might try to claim that you were an independent contractor, which is unlikely unless you enjoyed a great deal of independence in your job duties. It is also unlikely if your employer deducted taxes from your paycheck or issued you a W-2 form. Your employer may have also given you an unrealistic job title, unrelated to your actual duties, for the purposes of claiming that you were an exempt employee such as an administrator.
- Unpaid time: You may have off-the-clock work time, such as on-duty travel time, that your employer fails to count toward your working hours.
- Offsetting: Your employer may try to offset one week of “under time” against another week of overtime to cancel them out and avoid paying you for overtime. This practice is illegal.
- Illegal deductions: Your employer may have illegally deducted certain items, such as the cost of required safety equipment, from your overtime pay.
- Stonewalling: Your employer might simply ignore your claim or keep transferring you from department to department, hoping that you will become exasperated and abandon your claim.
You may file a claim with the Texas Workforce Commission (TWC) for overtime pay within six months of the date it was earned. The TWC will investigate and issue a decision. You might also be able to file a claim with the Wage and Hour Division of the U.S. Department of Labor within two years of the date your overtime pay was earned. Two years is also the statutory deadline for filing a claim in federal court under the Fair Labor Standards Act. If your employer is in bankruptcy proceedings, you may be able to register as a creditor with the Bankruptcy Court, although you might have to settle for less than the full amount of your claim.
Call the Law Office of Zinda Law Group
If your employer laid you off and seems unwilling to pay your overtime pay, your choice of attorney could mean the difference between winning and losing your case. Zinda Law Group enjoys a lofty reputation in Austin and has been approved by the Better Business Bureau®. Our experienced employment lawyers will not hesitate to vigorously and fearlessly represent you to ensure that you receive every dime that you deserve. Call our Austin office today at 800-863-5312 for a free initial consultation.