An employee cannot voluntarily opt out, give up or waive his or her right to be paid overtime under either federal law, the Fair Labor Standards Act (FLSA), or Kentucky state law.  This point came up and again was emphasized in the Sixth Circuit's recent decision in Craig v. Bridges Brothers Trucking.

Donna Craig worked as a bookkeeper for the trucking company.  Most weeks she worked more than 40 hours.  She always turned in time cards or records showing the number of hours she'd worked and did the same for the rest of the company's employees. She was responsible for calculating the payroll for herself and the other employees, which sometimes included overtime pay for some of the other employees. But Craig did not know that she was supposed to be paid overtime and so she never calculated any overtime pay for herself. Needless to say she was never paid overtime. 

When Craig filed suit for her overtime, the trucking company argued that she'd waived or given up her right to be paid overtime since she'd never demanded it while she was working for it. The Sixth Circuit Court of Appeals, which covers Kentucky, as well as Ohio, Michigan and Tennessee, had none of this and rejected that argument:

Accepting that argument "would allow an employee to voluntarily opt out of her rights under the FLSA. But the Supreme Court has already closed that door and 'frequently emphasized the nonwaivable nature of an individual employee's right .. to overtime pay under the Act.' 'FLSA rights cannot be abridged by contract or otherwise waived because this would nullify the purposes of the statute and thwart the legislative policies it was designed to effectuate."

There are two key points here. First, the trucking company knew that Craig was working the overtime; after all, she'd turned in her time records and time cards that documented that she was working more than 40 hours a week many weeks.  If an employer knows or should know an employee is working overtime, the duty to pay overtime arises and must be fulfilled.  Second, an employee doesn't give up her right to be paid overtime just because he or she doesn't know the law or doesn't know how to ask that the overtime be paid.  Many times employees are too afraid to demand their overtime pay, because they are afraid that they'll be fired if they do.  But their rights to the overtime are not lost if they do not speak up at the time, provided, of course, the employer knows or should know they worked the overtime.  Under Kentucky law an employee can go back five years to get their unpaid overtime.

Lexington, Kentucky overtime lawyer Robert Abell helps individuals and employees recover the overtime they've earned but not been paid; contact him at 859-254-7076. 

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