Legal Question in Employment Law in Arizona

Re: unpaid overtime

1. There is a one year statute of limitations period.

2. Non-payment of overtime is a federal violation with mandatory attorneys fees, so some attorneys like these cases for that reason

3. Fewer law firms are doing contingency fee work (that is, looking to the recovery for payment) due to the cost of litigation ($100,000.00 + out of pocket with no guarantee of recovery is typical) and bad economy hurts respources. So, in many cases now the client has to pay as they go in employment law cases, which is hard to do.

4. We have a special program where we do a limited contingency fee representation. It does not include litigation (the defendant company does not know that, however) in return for a fee of 20% of recovery and a costs reimbursement. This is compared to the standard fee of 33.3% and up for a normal contingency fee case with litigation up to 50% or so if the matter goes to trial in normal litigation. (We do not do normal contingency fee work.) What we do is work up your case, draft a strong demand letter, follow up, and, if possible, draft the Settlement Agreement and Mutual Release.

Re: unpaid overtime

Thank you very much for the question. The overtime exemptions under the Fair Labor Standards Act are very complex. These cases are very fact-intensive, so it is difficult to, without a lot of information, evaluate a potential overtime claim. The presumption is that inside sales employees are entitled to overtime pay for all hours in excess of 40 in one workweek. There are, however, certain instances in which an inside sales person will be exempt from the overtime requirements.

As with all overtime classification issues, the most important thing to consider are your duties. The overall percentage of your wages that derive from commissions will also be important. For instance, if you worked in a retail establishment or a restaurant and more than 50% of your wages come from commissions or tips, you would not be entitled to overtime. Further, even if you are entitled to overtime, there are certain rules under which you would be entitled to overtime at a rate much lower than 1.5 your normal rate.

Further, your employer, will not argue just one exemption. They will argue two or more. If there is strong evidence you are an inside sales employee who is entitled to overtime, they will argue the administrative exemption applies. They may also argue a white collar exemption.

The problem with waiting for the DOL and/or your employer to do the right thing is that you are, every day you wait, losing a day's pay. This is because the statute of limitations for overtime claims is, in most cases, two years. Every day that goes by is another day gone under the statute of limitations. You should, if you want to pursue this matter, act right away.