Frequently Asked Questions

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  • What can an employee do where the employer knows he's working overtime but isn't paying overtime?

    When an employee is working overtime and the employer knows the employee is working overtime, the employer is required to pay the overtime to the employee that he or she has earned.

    Here's a helpful rule from a recent decision, Craig v. Bridges Brothers Trucking, by the Sixth Circuit Court of Appeals, which covers Kentucky:

    if an "employer knows or has reason to believe" that an employee "is continuing to work" in excess of forty hours a week, "the time is working time" and must be compensated at time-and-a-half, even if the extra work performed was "not requested" or even officially prohibited.

    That's the standard: if an employer has reason to believe an employee is working overtime, the employee must be paid overtime.  This is true even if there is a rule by the employer that prohibits overtime.  

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

  • How Long Do I have to file an Overtime Claim Under Kentucky and Federal Law?

    Kentucky law has a five (5) year limitation period on the filing of claims for unpaid overtime.  In other words, you can go back the last five years from today and recover all the unpaid overtime from that period.  

    Federal law has a shorter limitation period, two years for sure and three years in some instances.

    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. 

  • What is the Statute of Limitations for an Unpaid Overtime Claim under Kentucky law?

    Five (5) years. You can go back five years under Kentucky law to claim and get paid the overtime that's been earned but not been paid. 

    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. 

  • Are Restaurant Workers In Kentucky Exempt from Overtime?

    Almost all restaurant workers in Kentucky are not exempt from overtime. A few restaurant workers in Kentucky, however, are exempt from overtime, but those are only the very few restaurant employees that work at a restaurant with less than $95,000 in sales for the five preceding years. This exclusion is found at 803 Kentucky Administrative Regulation 1075 Section 3.  

    So, a very few restaurant workers in Kentucky are exempt from overtime pay requirements but nearly all are not; almost all restaurant workers in Kentucky must be paid overtime if they work more than 40 hours in a workweek.

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

  • How Do You Prove You Worked the Overtime Hours?

    Although an employer is legally required to maintain accurate records of the hours an employee works, it is not unusual for employers to fail to do this, like when they coerce an employee to work off the clock, or just in some other way engage in wage theft. What if the individual's own testimony about the hours he or she worked is the only evidence that can be presented to support an overtime claim? Is this enough?

    The answer is "yes," at least according to a recent decision by the United States Court of Appeals for the Sixth Circuit, which covers Kentucky, in Moran v Al Basit LLC (June 1, 2015)

    Keep in mind that this doesn't mean that the employee will always win the case where the only evidence they can submit in support of their overtime claim is their own testimony: a jury may not choose to believe them or may only accept their testimony in part. But if fully credited an individual's testimony alone that he or she worked the claimed overtime hours is enough to prove the claim.

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

  • Are Bonuses Considered in An Employee's Overtime Rate?

    Non-discretionary bonuses must be included and considered when calculating an employee's regular hourly rate for purposes of overtime pay.  Examples of non-discretionary bonuses include bonuses promised in an agreement (such as an employment contract or collective bargaining agreement), bonuses tied to performance evaluations, incentive bonuses, service anniversary bonuses, attendance bonuses, production bonuses and retention bonuses.  Basically, a non-discretionary bonus is one payable if the employee does something, i.e., exceeds a sales goal, or, in some cases, doesn't do something, i.e., does not miss any workdays.

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

  • Employee or Independent Contractor?

    The courts have labeled the test that decides whether someone is an employee or an independent contractor the "economic realities" test. This "economic realities" test has 6 factors as follows:

    1. the permanency of the relationship between the parties
    2. the degree of skill required to perform the job or provide the service
    3. the worker's investment in equipment or materials for the task
    4. the worker's opportunity for profit or loss, depending on his or her skill level
    5. the degree to which the alleged employer has the right to control the manner in which the work is done
    6. whether the service rendered is an integral part of the alleged employer's business.

    All of these factors are supposed to be given more or less equal weight and the totality of the circumstances considered to determine whether the worker is an employee entitled to overtime or an independent contractor, who is not.

    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. 

  • Is a shift supervisor entitled to overtime pay?

    Shift supervisors can be entitled to overtime pay, but only in limited circumstances depending on factors that are special or particular to their work situation.  One of the factors is whether the shift supervisor has hire or fire authority or at least their "suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees [must be] given particular weight." This issue was discussed by the Sixth Circuit Court of Appeals in Bacon v. Eaton Corp., No 13-1816 (6th Cir., May 1, 2014). The Court did state one clear rule: "As a matter of law, an employee who merely carries out the orders of a superior to effectuate a change in status in not performing exempt ... duties." 

    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. 

  • What are my rights as a tipped employee?

    A "tipped employee" under the law is one who customarily and regularly receives more than $30 a month in tips. For a tipped employee, his or her tips may be counted as wages toward reaching the minimum wage of $7.25 per hour (the minimum wage at present). This is known as the “tip credit” because the employer receives a “credit” toward the minimum wage requirements. However, this tip credit does not release the employer of its obligation to pay each tipped employee a minimum wage. A tipped employee must be paid at least $2.13 an hour – regardless of how much is made in tips. If a tipped employee is not paid this direct wage, there may be a claim for failure to pay minimum wage. 

    Federal law and Kentucky state law requires employers who use a tip credit to meet the following requirements: 

    1. Inform each tipped employee about the tip credit allowance (including amount credited) before the credit is utilized; AND
    2. Be able to show that the employee receives at least the minimum wage when direct wages and the tip credit allowance are combined; AND
    3. Allow the tipped employee to retain all tips, whether or not the employer elects to take a tip credit for tips received, except to the extent the employee participates in a valid tip pooling arrangement.

    All three of these prongs must be met for a valid tip credit. If any one of these has not been met, the tip credit is invalid, and the tipped employee may have a claim for a minimum wage violation.

    For instance, even if the tipped employee's hourly rate comes out to be $7.25 (including tips and direct wages), the tipped employee may still have a claim for lost wages, if he or she is not informed of the employer's intention to apply a tip credit. Additionally, if the employer fails to adequately explain the tip credit provision to the tipped employee before it is applied to the employee, the tip credit is invalid and there may be a claim for a minimum wage violation. 

  • Is a First Assistant Manager Exempt from Overtime?

    The answer is "it depends," as best shown by a recent decision by the United States Court Of Appeals for the Sixth Circuit, Little v. Belle Tire Distributors, Inc.

    The employee's job title was First Assistant Manager. He was paid a salary of $1100 per month. He claimed he is entitled to overtime; the employer claimed he was exempt from overtime under either the executive or administrative exemption. The court characterized the dispute as follows: "Belle Tire seeks to paint Little as influential in hiring and as actively leading employee training and other management task. Little, on the other hand, seeks to characterize himself as a salesman who provides clerical-type assistance to the store manager." The court's ruling was that the dispute was for a jury to decide.

    This case again illustrates the point that just because an employee is paid a salary and has a job title including the word "manager," he or she is exempt from overtime. Whether or not the employee is or is not exempt from overtime depends upon what their actual job duties and functions are: do they actively lead employee training and carry on other management tasks or are they a salesman who happens also to provide some clerical assistance to their store manager?

    We have discussed previously these issues: Are Shift Supervisors Exempt from Overtime Pay Requirements?What is the Administrative Exemption to the Overtime Pay Requirement? and Are store managers exempt from overtime in Kentucky?

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

     

  • Construction Workers - Are You Really an Independent Contractor?

    About 20% of construction workers are improperly and unlawfully misclassified as independent contractors instead of employees. This comes as part of the Lexington Herald-Leader's study on the intentional and widespread abuse and misuse of the independent contractor classification. See End Independent Contractor Tax Dodge by Construction Companies

    By wrongly misclassifying employees as independent contractors employers can competitive advantage by cheating on at least four different points: (1) they get out of paying overtime to the employees; (2) they get out of paying payroll taxes; (3) they get out of paying unemployment compensation insurance; and, (4) they get out of paying workers compensation insurance. 

    Employees that have been cheated out of overtime because they've been misclassified as an independent contractor do have some recourse: they can file suit to recover the overtime they've earned but not been paid under both federal and Kentucky state law.  

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

  • Are Shift Supervisors Exempt from Overtime Pay Requirements?

    The answer is maybe. Whether or not a shift supervisor is entitled to overtime will turn on whether or not the "executive" exemption applies to them. The "executive" exemption is sometimes referred to as the "manager" or "supervisor" exemption.  There is a four-part test that decides whether the application applies. The parts are as follows:

    1. the employee must be compensated on a salary basis of at least $455 per week;
       
    2. the employee's primary duty must be management of the enterprise or of a customarily recognized department or subdivision of it;
       
    3. the employee must customarily and regularly direct the work of two or more other employees; and,
       
    4. the employee must have  hire or fire authority or their "suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees [must be] given particular weight."

    How these criteria apply is going to be different from employee to employee and will turn on their actual job duties and role in the workplace. For instance, a recent case regarded shift supervisors for the Eaton Corporation. Although there was evidence that they did evaluations for probationary employees, the Court ruled that the exemption may not apply if the employer did not really pay much attention to them. This case is discussed in greater length and detail on Robert Abell's Kentucky Employment Law Blog: Shift Supervisors and Overtime Pay.

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

  • What is the Administrative Exemption to the Overtime Pay Requirement?

    There are three basic requirements for an employee to meet the administrative exemption to overtime pay requirement.  The three requirements are as follows:

            1. The employee must be paid at least $455 per week.

            2. The employee's primary duties must relate directly to the general business operations of their employer or the employer's customers.

            3. The employee must regularly exercise true discretion and judgment as to significant matters.

    Work “directly related to management or general business operations” includes, but is not 
    limited to, work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance; quality 
    control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; 
    human resources; employee benefits; labor relations; public relations; government relations; computer network, 
    Internet and database administration; legal and regulatory compliance; and similar activities. 

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

  • Is There Any Recourse for Wage Theft?

    Wage theft occurs where an employer fails to pay an employee the wages or overtime that the employee has earned.  Wage theft is a National epidemic: the amount of wage theft is more than the total amount robbed from banks, gas stations and convenience stores put together as has been reported in the Huffington PostLow-Wage Workers Are Robbed More Than Banks, Gas Stations And Convenience Stores Combined. 

    Given the amount of wage theft each year and the frequency that it occurs it has been widely reported: Fast-Food Workers Denounce Wage Theft 'Crime Wave' At New York City HearingFlorida Wage Theft and Reagan Building Food Court Workers Allege Wage Theft In Complaint To Labor Department.

    There is recourse: both federal law, the Fair Labor Standards Act, and Kentucky law allow an individual to file suit to recover their unpaid wages and/or overtime along with attorney's fees. 

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

  • What is the import of an employee's belief or testimony that her position is exempt from overtime pay requirements?

    This can come up if an employer makes an employee sign an agreement that their position is exempt from overtime, or if an employer tricks or misleads an employee into testifying in her deposition that her position was exempt. Fed Ex argued precisely this in Boaz v. FedEx, No 12-5319 (6th Circuit, 8/6/13), but the Court was having none of it:

    An employee's subjective belief that her position was exempt from FLSA, however, does not mean the position was exempt as a matter of law. Cf. Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 300-01 (1985)(witnesses' testimony that they were volunteers was not dispositive of whether they were actually employees under the FLSA). Were it otherwise, an employer could obtain waivers of FLSA claims merely by having its employees sign a form stating that they are exempt.

    The Boaz case was also important, because the Sixth Court court also rejected FedEx's arguments that the employee had waived her claims under the Fair Labor Standards Act (FLSA) and Equal Pay Act, which have been discussed on the Kentucky Employment Law BlogAgreement To Shorten Limitations Period for Wage and Overtime Claims Not Enforceable, Sixth Circuit Rules and Employee Cannot Waive Claims Under the Equal Pay Act, Sixth Circuit Rules.

    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.

  • Do Interns Have To Be Paid Minimum Wage or Overtime?

    In light of a number of lawsuits filed on behalf of persons who worked as unpaid (or nearly unpaid) interns for unpaid wages and/or overtime pay, as reported in the New York Times, Conde Nast Faces Suit From Interns Over Wages, the pertinent question is: do interns have to be paid minimum wage and/or overtime?  The federal Department of Labor has issued guidance in a fact sheet and it identifies the following six factors as determinative of whether an internship may be paid or unpaid:

    1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

    2. The internship experience is for the benefit of the intern;

    3. The intern does not displace regular employees, but works under close supervision of existing staff;

    4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

    5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

    6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

    So there is no clear-cut answer; whether or not an intern should or must be paid will depend upon the circumstances applicable to each situation.

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

     

     

  • Does my employer have to pay overtime if I work through lunch in Kentucky?

    There are three points to this answer.

    First, the main point is that the employee must perform compensable work during what is an unpaid lunch break.  Both federal and Kentucky law require that an unpaid meal or lunch break be a true, bona-fide break during which the employee is relieved of significant work duties. 

    Second, you have to work more than 40 hours in a workweek for the overtime pay requirement to kick in.

    Third, you have to be paid overtime only if you are not exempt or non-exempt from overtime pay requirements. To be exempt from overtime pay requirements, you have to be (a) paid on a salary basis and more than $200 per week, and (b) your job has to fall within one of the categories (learned professional being one example) that is exempt from overtime pay requirements.  

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

  • Does Kentucky law require a lunch break for employees?

    Kentucky law requires that an employee be allowed a "reasonable" period for a lunch or meal break as close as possible to the middle of the employee's shift. KRS 337.355.

    Neither federal nor Kentucky law requires that the meal or lunch break be paid. However, if the lunch or meal break is unpaid, it must be a "bona fide" meal break in which the employee is relieved of duties to the point that he or she is able to pursue their own interests and eat comfortably without significant interruption, which is not the same as no interruption. 

    Robert Abell currently represents some employees and former employees who were required to perform work during their meal or lunch break and were not paid for that work: Working Through Lunch Breaks and Other Breaks Is the Basis of a Lawsuit for Unpaid Overtime and Wages Against CorrectCare.
     
    If you have not been paid the wages or overtime owed you, contact Lexington, Kentucky wages and overtime lawyer Robert Abell at 859-254-7076.

  • Are social workers exempt from overtime pay requirements?

    The short answer is that it depends on the specific education requirements applicable to the social workers in the particular situation. 

    One court has ruled that social workers are not exempt from overtime pay requirements. In Solis v. State of Washington DSHS, No 10-35590 (9th Cir., 9/9/11), the court ruled that social workers in the State of Washington were not exempt from overtime because the "learned professional" exemption was not applicable.  There was a degree requirement for the Washington social workers but the court ruled that it was not specific enough for the social workers to be exempt from overtime pay requirements. You can read more about the decision on the Kentucky Employment Law Blog.   

    Whether social workers elsewhere are exempt from overtime because they meet the "learned professional" exemption requirements may very well prove to be the case. It is a question that an exeperienced overtime lawyer should review. This question like many others having to do with exemptions from overtime pay requirements is very fact-specific to each individual situation. 


     

  • When is a tip-pooling arrangement illegal?

    Many restaurants use a tip-pooling arrangement or scheme in which all the servers, waiters, waitresses, bartenders, bussers, hosts, hostesses, etc. put together or pool their tips and then divide them either equally or in some other proportion.  These have to be done in a particular way or the tip-pool is illegal. 

    A tip-pooling arrangement is legal where the tip-pooling arrangment includes only employees that are customarily tipped, i.e., waitressess, waiters, bartenders, servers, bussers, etc.  If the tip-pooling includes employees that are not customarily tipped such as cooks and dishwashers, the tip-pool is illegal.

    What difference does it make if the tip pool is illegal? The difference is that, if an illegal tip pool arrangement is used, the employer cannot apply the "tip credit" to the employees in question. The "tip credit" allows an employer to actually an employee subject to the tip credit only $2.13 per hour the idea being that tips make up the difference between $2.13 and the minimum wage, which must be paid all employees. So a server, for instance, that has participated in an illegal tip pool should not have had the "tip credit" applied to him or her and has a claim for unpaid wages representing the difference between the amount of wages paid, which in Kentucky is probably $2.13 per hour, and the minimum wage, which in Kentucky is at present $7.25 per hour.

    If you have questions regarding the tip credit and how it is applied to you, contact Lexington, Kentucky wages and overtime lawyer Robert Abell at 859-254-7076.