- Not paying overtime on performance bonuses or commissions: Employers in the oil and gas industry, wireline service providers for example, often pay performance bonuses to employees in addition to their hourly and overtime rates of pay. If you receives a non-discretionary bonus or commission (one not based on the quality of work, but is instead on you expect to receive) and you work overtime, your employer must calculate your overtime rate taking into consideration the bonus or commission amount and not just your hourly rate. For example, if you earn $10 per hour, work 50 hours during a week, and also receive a $200 performance bonus for the week, your overtime rate of pay should be $17 per hour, not $15 per hour, because the $200 bonus must be included in calculating your overtime rate.
- Misclassification as an Independent Contractor: You may have been misclassified as an independent contractor. Many businesses do this in order to avoid paying workers overtime pay and other benefits. However, just because your employer calls you an independent contractor, doesn’t make it so. Depending on your work circumstances individual, you might actually be an employee entitled to overtime pay. Some factors the courts look at when determining whether a worker has been misclassified as an independent contractor are: (1) the degree of control exercised by the alleged employer; (2) the extent of the relative investments of the worker and alleged employer; (3) the degree to which the worker's opportunity for profit and loss is determined by the alleged employer; (4) the skill and initiative required in performing the job; and
- Paying salary or a day rate to avoid overtime: Some employers will pay non-exempt employees a salary or a day rate in order to avoid paying that employee overtime. Just because you are not paid hourly does not automatically mean you are not entitled to overtime. Your actual job duties must fall into an exempt category for your employer to avoid paying overtime.
- Not counting travel time in total hours worked: Travel that is all in a day’s work and that is part of the employee’s principal activity, is compensable. This includes travelling between worksites during the workday and travel to a worksite after performing job-related work. For example, if you have to travel to a site (such as a shop, equipment yard, or office) to pick up materials for the job or to receive instructions for the workday before you begin travelling to the worksite, that travel time is probably compensable.
- Off-the-Clock Work: Some employers permit or require employees to work “off-the-clock” or do not allow employees to include all of the time they worked on their timesheets. This might mean working through lunch breaks, working before or after shift.
- Carry over overtime hours from one week to the next: Some employers impermissibly carry over hours worked from one workweek to the next in order to avoid paying overtime. For example, an employee may work 50 hours in one workweek and 30 hours in the next workweek. The employer might carry over 10 hours from the first workweek to the next and compensate the employee for both workweeks at 40 hours straight time each. It is illegal for non-exempt employees to be paid this way. Using our example, the employee is entitled to 40 hours at straight time, 10 hours at the overtime rate in the first workweek and 30 hours at straight time in the second workweek.
- Straight time pay for overtime hours worked: Non-exempt, or overtime eligible, employees are entitled to be paid at time and one half their regular rates of pay for all hours worked over 40 in a workweek. Some employers pay employees their straight time rates, or regular rates, for all hours, regardless of whether the employee works over 40 hours in a workweek or not. This is illegal.
- Comp time in lieu of overtime pay: Oilfield employers are not permitted to provide non-exempt employees with compensatory, or “comp” time instead of paying overtime. Overtime (1 ½ the employee’s regular rate of pay) must be paid for all hours worked over 40 in a workweek to non-exempt employees.
If any of these methods of pay apply to you, you may be entitled to additional unpaid overtime pay and other money damages. Click here to complete our Contact Form and we’ll let you know whether you may have a case. Or call us at 877-895-2937.
