Keep a Record of Overtime

Spartanburg, SCMark W. knows he can't file a lawsuit against his former employer for overtime pay, but he does know the federal overtime laws and wants to advise others who may find themselves in a similar situation as he was—paid a salary when he shouldn't have been classified as exempt and not getting paid overtime--to keep a record of all overtime worked.

"I started working on a landfill gas energy project in 2002 for an energy services corporation," says Mark. "Right away I was put on a salary and my employer told me that my week would be any amount of hours. And because I would be the only one running the plant, I was on call 24/7. At the time I was hired, I asked why I was going to be on salary and they said it was because of the responsibility I had.

I took the job for the experience but I still looked up The Fair Labor Standards Act (FLSA), a group of federal rules and regulations that determine eligibility for overtime pay. My job description fit the rules for non-exempt employees. I had no power to hire and fire, I didn't have anyone under me (I was the only person there!) and basically I took care of the machinery—I did maintenance work.

And the other thing that bothers me is that I didn't record any of my hours—in retrospect, I should have known better. My employer told me that when I filled out time cards I was to put down 8 hours per day, every day. But that wasn't the case: in reality I was working a lot of weeks when I was called in during the middle of the night and during holidays. An average week would comprise about 5-10 hours of overtime, and they expected more. I also discovered that if your job title is classified as non-exempt, you must complete a timesheet in order to be paid. So why was I filling out time sheets on salary?

I got a new boss and he said the guy in my position before me worked 60-70 hours a week, and that I should stay at the plant until 7pm every day. At the time, I didn't really say anything back to him because I was afraid of losing my job. I worked there for three and a half years and all that time I didn't keep any records; unfortunately I don't think I have a case.

I wasn't out to get them in any way. For the first few years I really did enjoy the job but increasingly there was more pressure to work more overtime. The operation expanded and the equipment had more problems because I was in charge of maintaining it and there wasn't enough time in the day. As well, the environment was nasty—I was dealing with methane gas from the landfill. (Safety equipment and gear was provided—no problems on that issue.)

It got to the point that I did talk to my boss and HR. They said my position was not hourly and they weren't about to pay overtime. My choice was to stay or quit. When I eventually quit, I didn't bring up the subject of overtime because I knew it would be futile.

I went straight from this job to another and I enjoy the job I have very much; they pay an hourly rate; when I work over 40 hours a week I get paid overtime.

I want to take this opportunity to advise anyone not to do what I did—keep daily records of everything, from clocking in and out to breaks and lunch hour. If you are asked to be salaried, be sure and verify that your job description meets the conditions laid out by the department. If it doesn't meet them, you need to ask the HR department, either by e-mail or writing to the company that hired you and ask them to give reasons for being exempt. And if you still feel that your job doesn't meet those qualifications, keep very careful records. I would also advise you to print out your cell phone records for after hours work, e-mails after hours and have co-workers verify your after hours work. I'm sure there are a lot of other things to document which a labor law attorney could tell you.

And if you have kept records and believe you are owed overtime pay, you may want to contact a lawyer. I wish I had."