Overtime Pay and Worker Misclassification Explained

Issue: Overtime pay law violations

Millions of American workers in a wide variety of sectors, from retail and finance to computer systems and professional services, are victims of misclassification. As explained by historian and labor rights advocate Marjorie Elizabeth Wood, worker misclassification, often consisting of wrongly labeling an employee as an “independent contractor,” is a tactic employers use to avoid providing overtime pay and other employee benefits guaranteed under the law.

Lieff Cabraser has successfully represented tens of thousands of workers in overtime pay lawsuits against some of the nation’s most prominent corporations, including IBM, Wells Fargo, and AT&T. We have obtained over $100 million in judgments and settlements for the workers bringing these claims.

The following is a brief discussion of some common questions affecting overtime pay. It is not intended to provide specific legal advice.

If you have questions about your eligibility for overtime, we welcome the opportunity to answer your questions. Please use the form below to contact an employment lawyer at Lieff Cabraser for a free, confidential review of your situation, or call us toll-free at 1 800 541-7358 and ask to speak to attorney Anne Shaver.

Who Is Entitled to Overtime Pay?

All employees who don’t fit within certain narrow “exemptions” to overtime pay laws are entitled to be paid overtime premium pay for every hour of overtime they work. Overtime is defined as work over 40 hours in a week under federal law, and often has slightly different definitions under various state laws (for example, some states put restrictions on work beyond a certain number of hours per day). These federal and state overtime pay laws exist to ensure that companies don’t force employees to work long hours without premium compensation, and to incentivize companies to employ more people in efforts to combat unemployment.

Do Job Titles Determine Whether a Worker is Eligible for Overtime Pay? Can Salaried Workers Receive Overtime Pay?

Under the law, your job title does not determine whether you should receive overtime. So being called a “manager,” an “engineer,” a “specialist,” a “professional,” or any other particular title does not matter. Similarly, an employer classifying you as “salaried” or “exempt from overtime” does not prevent you from getting overtime. In many cases, employers misclassify employees to deprive them of overtime pay. Your eligibility for overtime depends on what you are actually doing in your job.

In addition, just because a company considers you an “independent contractor” who is not entitled to any of the protections of being an employee, that may not be the case. Whether a person labeled as an independent contractor is actually an employee depends on the fact-specific nature of the work and the relationship to the company.

What Factors Determine If a Worker is Eligible for Overtime Pay?

Employee status and the right to overtime is often determined by the degree of control the employer has over the manner and means of work.

If your freedom of decision making is constrained by procedures, instructions, policies, or reporting requirements, you may be entitled to overtime pay. Similarly, if you follow client or management instructions, or do repetitive tasks, you may be entitled to overtime pay.

However, if you consistently exercise discretion in performing your job you are likely not entitled to overtime pay. Discretion includes things like setting policies and making significant creative decisions.

Only a court has the final say about whether you should be getting overtime pay. There are several factors that a court considers:

Positive Factors
(likely to get OT)
Negative Factors
(unlikely to get OT)
  • Perform repetitive tasks
  • Follow established procedures, protocols & guidelines
  • Operate under supervision & rules
  • Perform such work a majority of time (even if also perform substantial other work)
  • Address new problems each day
  • Exercise creativity and discretion in crafting solutions
  • Operate independently
  • Perform such work a majority of time or as primary duty
  • Participate in far-reaching research projects, making important decisions.

Contact National Worker Overtime Pay Lawyers/Attorneys at Lieff Cabraser

If you have questions or want to know more about your rights, please use the form below to contact Lieff Cabraser, or call us toll-free at 1 800 541-7358 and ask to speak to lawyer Anne Shaver. We will review your claim for free, confidentially, and with no-obligation on your part.

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