Law Offices of Mitchell Schley, LLC

New York and New Jersey Labor and Employment Lawyer

197 Route 18 South
South Tower – Suite 3000
East Brunswick, NJ 08816
Phone: (732) 325-0318
Fax: (732) 325-0317

245 Park Avenue, 39th Floor,
New York, NY 10167
Phone: (212) 672-1848
Fax: (212) 372-8798

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(732) 325-0318

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About Mitchell Schley, ESQ

Overtime II

Overtime pay is the basis for the most common labor law violations by companies in New Jersey and elsewhere. To review briefly, according to the law, everyone who is paid by the hour must receive time and a half overtime pay for all hours they work over 40 hours in a week. Second, everyone who is not paid by the hour, but instead is paid a weekly or annual salary, must also be receive time and a half overtime pay for all hours they work over 40 hours is a week, unless their job is exempt from overtime pay by the law. This is true regardless of how high an employee’s salary is. Many employers mistakenly either intentionally or unintentionally do not pay overtime to certain salaried employees who should actually be receiving it. It has been reported that 80% of employers are violating the wage laws and failing to make the proper payments to employees.

Many employers take advantage of employees’ lack of knowledge of the law and have the attitude that they will keep the employees’ money unless someone gets a lawyer and complains about it or reports the company to the Department of Labor. In a regular case an employee can have a lawyer obtain unpaid overtime pay for that employee alone. In some cases an employee also may decide if he or she wishes to have a lawyer file an overtime pay case on behalf of all of the employees in the job classification that were not properly paid. This is known as a class action case. In many cases the law requires the company to pay a worker who was not paid overtime, double the amount of unpaid overtime pay as a penalty for not paying the correct amount. An example of a class action case recently occurred concerning a familiar chain store, The Family Dollar Store. In that case, an employee with the title of “manager” contacted a lawyer because he thought that he might be entitled to overtime pay for hours he worked in excess of 40 in a week. The manager often worked 50 or more hours each week. The company’s position was that a manager who receives an annual salary is not entitled to overtime pay. After reviewing the facts, the employee’s lawyer concluded that the employee should receive overtime pay and filed a lawsuit on behalf of the employee. The court agreed with the employee and ordered the company to pay its 1,424 store managers unpaid overtime in the amount of 35 million dollars. The court concluded that the “store mangers” were managers in name only and actually spent most of their time doing manual labor such as stocking shelves and operating cash registers. Therefore, these 1,424 employees should have been paid 1.5 times for hours over 40 in a week even though they were paid on a salary basis. In addition the court ordered the company to pay the lawyer’s fees for the lawyer who represented the employees, which is what the law requires for these types of employer violations. This case is an example of why everyone who is paid with a salary and does not receive time and a half pay for overtime work, needs to examine their situation to see if they are actually owed money by their company.

Another common labor violation in this area concerns how hours are counted by the company. For example, let’s say an employee starts work at 9:00 a.m. and leaves at 6:00 each day with an hour for lunch. The employee eats regularly at his desk while working in front of his supervisor. Even though the employee works 45 hours a week, the company does not give the employee overtime pay at time and a half, because the company says that the employee works only 40 hours in a week because he gets one hour for lunch. In this case the company is wrong because it can subtract the lunch hour only if the employee does not perform any work during the lunch hour, but if the employee works through lunch while eating at his or her desk this hour counts as work time. Therefore this employee should receive 5 hours of overtime pay each week.

When calculating whether you worked more than 40 hours in a week and are entitled to overtime it is important to make sure your company is counting all of the time as required by law, which many companies fail to do. Work time includes work you do at home at night or on weekends that is part of your job, company training classes in the office or away from the office, and car travel to work sites other than your regular work site.

Mitchell Schley is an attorney who practices labor law at the Law Offices of Mitchell Schley, LLC, in East Brunswick and New York City. Feel free to contact him if you have a question about this article or any other labor law issue. He can be reached at (732) 325-0318 or at

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Law Offices of Mitchell Schley, LLC
197 Route 18 South, South Tower – Suite 3000, East Brunswick, NJ 08816 • Phone: (732) 325-0318 • Fax: (732) 325-0317
245 Park Avenue, 39th Floor, New York, NY 10167 • Phone: (212) 672-1848 • Fax: (212) 372-8798
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