But if you’re a non-exempt employee and work more than 40 hours in a workweek, under the Fair Labor Standards Act (FLSA), you are required to be paid 1.5 times your regular hourly wage for each hour you work over 40 hours.
In addition, in Florida non-exempt employee rights are protected under Section 24 of Article X of the Florida Constitution. This section ensures that non-exempt workers are guaranteed a minimum wage ($8.25 an hour in Florida) and that there’s an annual increase in the Florida minimum wage (for example, last year, the Florida minimum wage was $8.10 an hour).
Your employer may try a number of different tactics to avoid paying you overtime, including attempting to classify you as an independent contractor or as an exempt employee. They may put you on “salary” and then tell you that means you are not eligible for overtime (in some but not all cases, that will be true). They may also try to convince you that you are not eligible to collect overtime pay because the statute of limitations ran out. However, this is not the case, unless it’s been two years (or three years if your employer willfully violated the law). Not only can you legally collect back wages, but you may also be eligible to receive damages from your employer.
What Steps Can You Take to Collect Unpaid Overtime in Florida?
If you believe your employer owes you overtime pay under the standards of the FLSA, or Florida law, you need to determine whether you are a non-exempt employee. Generally, if you are paid an hourly wage, you are classified as non-exempt. For example, under the FLSA, first-responders, such as paramedics or police officers, are provided overtime protection. In addition, such positions as factory and construction workers, cashiers, customer service reps, and secretaries are typically classified as non-exempt.
Once you’ve determined that you’re a non-exempt employee, you have the option of filing a civil claim with the Florida state court system in the form of an unpaid overtime lawsuit. You also have the option of contacting the Department of Labor. Regardless of what you decide to do, it could be in your best interest to speak with an experienced employment attorney before taking action.
If you decide to take action, either in the form of filing a complaint with the DOL or pursuing a lawsuit for unpaid overtime in Florida or back wages against your employer, under Florida law you must first provide notice to the employer (although you may be better served by seeking legal counsel before taking these steps since many employers will unlawfully retaliate against you for making a demand for unpaid wages).
The notification should explicitly state that you plan to bring a civil suit against your employer or file a complaint with the DOL. In addition, the notification must:
- include information on the overtime wages you feel you are owed,
- the dates you worked overtime,
- the hours you worked on those dates, and
- the total amount you are owed
Upon receiving notification, the employer has 15 calendar days to respond. They must either pay the total amount included on your notification or settle the dispute to your satisfaction. If you are not satisfied with your employer’s proposed resolution, you can decide whether you want to file a lawsuit. The FLSA does not contain a similar notice requirement.
If you decide to pursue a lawsuit, you can work closely with an experienced employment attorney to bring your case to court. If you do so, a judge will determine whether you are entitled to receive unpaid overtime wages and in what amount. When you work with an attorney to present your case, you will have to:
- document that you worked for a covered employer,
- establish that you are entitled to receive overtime wages at one and a half times your regular hourly rate,
- establish that you worked for your employer during the dates you specified (and within the applicable 2 or 3 years preceding the filing of the lawsuit), and
- establish that your employer did not pay you the overtime wages you earned
If the judge rules in your favor, he or she may require your employer to pay you:
- Your unpaid overtime wages
- Attorney’s fees and costs
- Liquidated damages not more than the amount of your unpaid back wages
- Equitable remedies such as restoring your position (if you were terminated) or issuing an injunction against your employer so that they refrain from the type of conduct meted out against you
In addition, if you decide to file a complaint with the DOL, its Wage and Hour Division (WHD) will investigate your claim. When you do so, the information you provide will be confidential, unless the DOL decides to pursue legal action against your employer. In filing a complaint with the DOL, you will need to provide the following information:
- Your name
- Your address and phone number
- Name of the company you work or worked for
- Location of the company
- Name of supervisor(s) and/or owners
- Your job title and work you did
- When and how you were paid
Additionally, you may be asked to provide a record of the hours and days you worked, pay stubs, and any other documents that could provide insight into your employer’s pay practices.
If the WHD determines that you have a case, the Secretary of Labor can pursue legal action against your employer under the FLSA. You also have the option of pursuing the claim on your worn, through a private lawsuit. Similar to the penalties under Florida law, the Secretary of Labor can hand out fines, civil penalties, and even imprisonment if it’s determined that your employer repeatedly or deliberately violated the FLSA.
What If Your Employer Attempts to Take Action Against You?
Under the FLSA and Florida law, you are protected if you did not receive the overtime compensation you are owed. By law, your employer is not permitted to retaliate against you or terminate you if you provide notice to them about the unpaid overtime wages and then file a complaint with the DOL or pursue a civil suit against them.
If you want to protect your rights, particularly if your employer has taken adverse action against you, it’s in your best interest to hire an experienced employment attorney. Not only can he or she provide expert counsel, but you will also greatly improve your chances of winning your case or claim. Your attorney will know what evidence to present and will be able to handle all legal procedures.
If you haven’t been paid the overtime wages you are owed by your employer, you are protected under the FLSA and Florida law. To learn more about your overtime rights, overtime exemptions, and how to keep overtime records, download our Overtime, Minimum Wage and Unpaid Wages guide.