Not being paid for overtime and fired??

[Gen9]

What is the name of your state (only U.S. law)? COLORADO

My older brother and I work for a retail/service company based out of Denver. This company tries to convince its employees that if they work over 40 hours per week that they can not receive overtime pay (time and a half). Most often when an employee reaches 40+ hours, there is still much work to be done for the company. However, the company threatens that if the work is not completed that the employee can be fired. Can the company, who is refusing to pay overtime, fire an employee for refusing to do the work?? And if not, what can we do to bring their injustices to light? There are easily over 100 employees working for them.

 

[justalayman]

Can the company, who is refusing to pay overtime, fire an employee for refusing to do the work??

yes


they can fire you because they want to. They need no more reason than that but an employee refusing to work (which is what you wrote) is insubordination and not only a reason to fire you but to dispute any claim of unemployment benefits (and likely win).

If an employee simply cannot meet their demands for quantity of work, they can still fire you but that will not generally disqualify you for unemployment benefits.


Not positive of the overtime issue. Generally OT must be paid over 40 hours but there are some exceptions and your "service" situation might be included in one of them. Can you be a bit more specific with the line of work?

 

[Gen9]

I work for a dry cleaners company. Are there any exceptions if they are a GREEN dry cleaners company?

yes


they can fire you because they want to. They need no more reason than that but an employee refusing to work (which is what you wrote) is insubordination and not only a reason to fire you but to dispute any claim of unemployment benefits (and likely win).

If an employee simply cannot meet their demands for quantity of work, they can still fire you but that will not generally disqualify you for unemployment benefits.


Not positive of the overtime issue. Generally OT must be paid over 40 hours but there are some exceptions and your "service" situation might be included in one of them. Can you be a bit more specific with the line of work?

 

[FlyingRon]

The type of business usually doesn't matter (other than things like agriculture). The biggest aspect is whether you are an exempt employee or not. Exempt employees can be expected to work non-compensated overtime. Others can not. Info here: http://www.flsa.com/coverage.html

 

[Gen9]

Thank you for the info, FlyingRon. Judging my what you sent me, I'm a non-exempt employee. Therefore, our employer should not be attempting to swindle themselves out of paying overtime to its employees.

The type of business usually doesn't matter (other than things like agriculture). The biggest aspect is whether you are an exempt employee or not. Exempt employees can be expected to work non-compensated overtime. Others can not. Info here: http://www.flsa.com/coverage.html

 

[commentator]

I'd call the Department of Labor Wage and Hour division in my state and ask these questions. Your state is one that actually has its own wage and hour division. Keep up with the hours you work beyond 40 each week in the meantime.

Based on your last statement, you're going off to jump on your white horse and seek justice here. Bad idea. Do not threaten them or talk to other employees about what you're doing. If the DOL does actually investigate the situation at the company, they will not give out the name of the employee who called in and complained about them. If you don't brag that you're the one, they probably will not be mad at you specifically enough to fire you for doing this. But otherwise, if you start giving them a lot of grief and demanding your rights you're about to be fired. And if you are, unemployment benefits is all you can (possibly) get, there's not going to be any "whistleblower's protection" for you, and you can't demand that you be reinstated or anything like that.

You can also call Wage and Hour and complain after you've been fired, if you're fired. You likely wouldn't be reinstated or compensated no matter what sort of dirty wage dealings are going on, but they might require the employers to back pay everyone who's worked there in a while that they can locate.

But yes, the company CAN fire you for just about anything they want to fire you for, including not getting all your work done in a prescribed period of time. As someone said, not being able to complete your work if you do your best isn't really going to be called "misconduct" for unemployment benefits purposes.

But if you quit your job, your chances of unemployment benefits being approved go way down,even if they weren't paying you overtime appropriately. They're going to ask, "What did you do to try to resolve the situation before quitting?" and that's the question I suggest you work on before you quit. Call the Department of Labor, find out what is actually legal. Ask your employer specifically why they don't think you are entitled to overtime. If they are misclassifying you as exempt employees or 1099's or have some misconception about the way you are being paid, you'll need to discuss this with the Wage and Hour people too.

When a company is reported, there is usually an investigation by the Wage and Hour division. This may take a long time to resolve or even before they have time to come in and do such an investigation. If you want to keep working there while this happens, keep a low profile and keep up with any overtime hours you may work.

 

[Gen9]

Hahaha you were dead on with your prediction! Thank you for talking me down off the horse. Im grateful to be learning so much about how to handle this situation and I'm wise enough to keep a low profile and just report them. Thanks again!

I'd call the Department of Labor Wage and Hour division in my state and ask these questions. Your state is one that actually has its own wage and hour division. Keep up with the hours you work beyond 40 each week in the meantime.

Based on your last statement, you're going off to jump on your white horse and seek justice here. Bad idea. Do not threaten them or talk to other employees about what you're doing. If the DOL does actually investigate the situation at the company, they will not give out the name of the employee who called in and complained about them. If you don't brag that you're the one, they probably will not be mad at you specifically enough to fire you for doing this. But otherwise, if you start giving them a lot of grief and demanding your rights you're about to be fired. And if you are, unemployment benefits is all you can (possibly) get, there's not going to be any "whistleblower's protection" for you, and you can't demand that you be reinstated or anything like that.

You can also call Wage and Hour and complain after you've been fired, if you're fired. You likely wouldn't be reinstated or compensated no matter what sort of dirty wage dealings are going on, but they might require the employers to back pay everyone who's worked there in a while that they can locate.

But yes, the company CAN fire you for just about anything they want to fire you for, including not getting all your work done in a prescribed period of time. As someone said, not being able to complete your work if you do your best isn't really going to be called "misconduct" for unemployment benefits purposes.

But if you quit your job, your chances of unemployment benefits being approved go way down,even if they weren't paying you overtime appropriately. They're going to ask, "What did you do to try to resolve the situation before quitting?" and that's the question I suggest you work on before you quit. Call the Department of Labor, find out what is actually legal. Ask your employer specifically why they don't think you are entitled to overtime. If they are misclassifying you as exempt employees or 1099's or have some misconception about the way you are being paid, you'll need to discuss this with the Wage and Hour people too.

When a company is reported, there is usually an investigation by the Wage and Hour division. This may take a long time to resolve or even before they have time to come in and do such an investigation. If you want to keep working there while this happens, keep a low profile and keep up with any overtime hours you may work.

 

[justalayman]

actually there are a lot of exemptions to the minimum wage and overtime rule. Some service employees are in that exemption.

FLSA, Section 7(i), exempts certain employees of retail and service establishments who are paid on a commission basis in whole or part from the FLSA's overtime pay regulations. There are two requirements for a business to be considered a "retail or service establishment":

Seventy-five percent (75%) of the annual dollar volume of the sales of goods or services (or of both) come from sales that are not resale; and
The sales of goods or services (or of both) are recognized as retail sales in the particular industry.
If a retail or service employer wants to use the Section 7(i) overtime exemption for commissioned employees, three conditions must be met:
The employee must be employed by a retail or service establishment; and
The employee's regular rate of pay must exceed one and one-half times the applicable minimum wage for every hour worked in a workweek; and
More than half the employee's total earnings in a representative period must consist of commissions on goods or services.
Unless all three conditions are met, the Section 7(i) exemption is not applicable, and overtime pay must be paid for all hours worked over 40 in a workweek at one and one-half the regular rate of pay, which includes commissions.

Not saying you meet those requirements (as it would appear you don't from what you have stated), but contrary to widely accepted opinions, FLSA exemptions are not limited to business professionals or agricultural types of employment. When you mentioned "service" it just rung a bell that I wanted to be sure whether you did or didn't meet the requirements to be exempt.



anyway, unless they are actually requiring you to work beyond 40 hours and not paying the appropriate overtime scale, there is nothing to report to the DOL. They do not have to allow you to work over 40 hours regardless of how much time you feel you need to complete the required amount of work.

So, if they are requiring you to work over 40 hours and not paying the appropriate OT, then you have a valid complaint. If they prohibit you from working OT and are simply griping about not getting your work done, there is nothing to complain about to the DOL.

 

[Gen9]

Ok based on what you've said and the situation with my employer, I do have a valid claim. Employees that work for this company are being required to work over 40 hrs/wk and aren't being paid the appropriate overtime. You don't draw a commission at a dry cleaners and the wage is does not exceed 1.5 times the $7.64 minimum wage in CO even if you did.

actually there are a lot of exemptions to the minimum wage and overtime rule. Some service employees are in that exemption.



Not saying you meet those requirements (as it would appear you don't from what you have stated), but contrary to widely accepted opinions, FLSA exemptions are not limited to business professionals or agricultural types of employment. When you mentioned "service" it just rung a bell that I wanted to be sure whether you did or didn't meet the requirements to be exempt.



anyway, unless they are actually requiring you to work beyond 40 hours and not paying the appropriate overtime scale, there is nothing to report to the DOL. They do not have to allow you to work over 40 hours regardless of how much time you feel you need to complete the required amount of work.

So, if they are requiring you to work over 40 hours and not paying the appropriate OT, then you have a valid complaint. If they prohibit you from working OT and are simply griping about not getting your work done, there is nothing to complain about to the DOL.