Recently my employer sent me a check with release forms to be signed to release the employer from any further actions under the federal DOL overtime policy. Apparently, me and many others have been misclassified as exempt. A few weeks ago we were notified we were now classified as non-exempt.

The check I received was for several thousand bucks but there was no accounting of time in the details. I called my employer and asked about the check and was told that it was because of misclassification and amount of back pay was for 1/2 time for overtime for the previous 2 years. They explained that since I was salaried that I was not eligible for the straight time portion of overtime and only eligible for the 1/2 time portion of overtime. They also said that this program was under the supervision of the DOL and that the DOL concurred that the employer is only liable for 2 years back overtime payment at the 1/2 time rate.

This does not seem to be appropriate to me and the question: Is 1/2 time back overtime correct? I was never paid for any overtime at the straight time rate.

The check I received was for several thousand bucks but there was no accounting of time in the details.

That would not be a surprise unless the company had you complete a time card every week. If not, they are just estimating what you may have worked. The estimate could be higher or lower than reality.

They also said that this program was under the supervision of the DOL and that the DOL concurred that the employer is only liable for 2 years back overtime payment at the 1/2 time rate.

Looks to me like someone complained, the company got audited by the DOL and had to reclassify everyone in the same job as the person who complained. The DOL will only go back two years unless it finds that the employer was in willful violation of the law. In that case, it could go back three years.

This does not seem to be appropriate to me and the question: Is 1/2 time back overtime correct? I was never paid for any overtime at the straight time rate.

You were paid a salary every week, no matter how many or how few hours you worked. Paying you half time for the estimated hours of overtime worked in the past is legal.

You should be concerned about how overtime will work in the future. You can be salaried, non-exempt and continue to be paid only half-time for hours worked over 40 (called the fluctuating work week method). This method of payment, while legal, is not really all that great a deal if you usually work OT, since the more hours you work, the more your average hourly rate of pay goes down.

Recently my employer sent me a check with release forms to be signed to release the employer from any further actions under the federal DOL overtime policy. Apparently, me and many others have been misclassified as exempt. A few weeks ago we were notified we were now classified as non-exempt.

The check I received was for several thousand bucks but there was no accounting of time in the details. I called my employer and asked about the check and was told that it was because of misclassification and amount of back pay was for 1/2 time for overtime for the previous 2 years. They explained that since I was salaried that I was not eligible for the straight time portion of overtime and only eligible for the 1/2 time portion of overtime. They also said that this program was under the supervision of the DOL and that the DOL concurred that the employer is only liable for 2 years back overtime payment at the 1/2 time rate.

This does not seem to be appropriate to me and the question: Is 1/2 time back overtime correct? I was never paid for any overtime at the straight time rate.

The usual calculating method is to assume the salary was paid for all hours worked during a week to get the job done. Take the salary paid for the week, divide by the number of hours worked - that's the hourly rate for that week. Take the hours over 40, add 1/2 pay to bring those overtime hours up to time and 1/2 for overtime.

If you can show the salary was for 40 hours of work (and not for however long it took to complete the work, even if over 40), then a different calculation method would apply.

If the calculated hourly rate does not equal or exceed the minimum wage, the calculation is different.

Notice under the FLSA that you are entitled to an additional amount equal to the amount of unpaid back wages as liquidated damages. The problem with this settlement is that you are only getting 1/2 of what you are entitled to.

Notice under the FLSA that you are entitled to an additional amount equal to the amount of unpaid back wages as liquidated damages.

I learn again!

Does the DOL impose that or is that something that must be awarded by a court?

I learn again!

Does the DOL impose that or is that something that must be awarded by a court?

It's by statute at 29 USC 216(b). The DOL is able to bring suit to obtain an equal amount in liquidated damages, as is the individual employee (advisably with the aid of an attorney).

It's by statute at 29 USC 216(b). The DOL is able to bring suit to obtain an equal amount in liquidated damages, as is the individual employee (advisably with the aid of an attorney).

I am a little slow, but that means that the DOL (or advocate for the employee) would have to go to court to do that?

From the OP's post, it appears that the DOL audited and required payment for backwages, but not any liquidated damages. Does this have to be in court or could the DOL have added those damages to the amounts it told the employer it must pay?

If it has to be in court and, as seems to be the case, the DOL is not taking that route, could not the employee file on his own for those damages?

I am a little slow, but that means that the DOL (or advocate for the employee) would have to go to court to do that?

From the OP's post, it appears that the DOL audited and required payment for backwages, but not any liquidated damages. Does this have to be in court or could the DOL have added those damages to the amounts it told the employer it must pay?

If it has to be in court and, as seems to be the case, the DOL is not taking that route, could not the employee file on his own for those damages?

That makes sense, ScottB, but I am not entirely certain (and have certainly seen a lot of court decisions that make no sense).

That makes sense, ScottB, but I am not entirely certain (and have certainly seen a lot of court decisions that make no sense).


WHOOOPS:

29 USC 216(c):The Secretary is authorized to supervise the payment of the unpaid minimum wages or the unpaid overtime compensation owing to any employee or employees under section 206 (http://web2.westlaw.com/find/default.wl?rp=%2ffind%2fdefault.wl&vc=0&DB=1000546&DocName=29USCAS206&FindType=L&AP=&fn=_top&rs=WLW7.02&mt=Georgia&vr=2.0&sv=Split) or section 207 (http://web2.westlaw.com/find/default.wl?rp=%2ffind%2fdefault.wl&vc=0&DB=1000546&DocName=29USCAS207&FindType=L&AP=&fn=_top&rs=WLW7.02&mt=Georgia&vr=2.0&sv=Split) of this title, and the agreement of any employee to accept such payment shall upon payment in full constitute a waiver by such employee of any right he may have under subsection (b) of this section to such unpaid minimum wages or unpaid overtime compensation and an additional equal amount as liquidated damages.



So, if OP accepts the back wages and signs the agreement, he precludes his right to get the liquidated damages.

My reading is OP can reject the agreement and proceed on his own and have a great case for back wages and liquidated damages, or he can just accept the back wages and be done with it, but he cannot accept the back wages sign the agreement and proceed to court for the liquidated damages.

Does cashing the check constitute agreement with the amount and there is no settlement for liquidated damages possible or does the agreement also need to be signed as well?

Does cashing the check constitute agreement with the amount and there is no settlement for liquidated damages possible or does the agreement also need to be signed as well?

Good question. I don't know a hard and fast answer. But, I would think you don't have to sign the agreement and can proceed to prosecute your own case to obtain liquidated damages. I am assuming the check doesn't have anything on it indicating it is a payment per compromise agreement.

I am assuming the check doesn't have anything on it indicating it is a payment per compromise agreement.

Apparently that is not always the case.

I found this at the DOL web site and it is quite relevant to this thread.

http://www.dol.gov/sol/media/briefs/delta-1-04.htm

In addition to the form the employees were asked to sign, which waived their rights to civil suit and liquidated damages in return for "payment in full" of back wages, the back of the check also had a similar statement, although I did not notice in my quick read the precise language use.

I would suggest that, if the OP wants to take civil action, DON'T sign the check.

How much money are we talking about, ballpark?

Before taxes about $7,000. After taxes a lot less.

Is the Wa.State minimum wage factored into the settlement? Federal minimum is substantially lower.
JoeC

The check just arrived with NO accounting of hours worked, periods covered or any way to check the pay rate. I have talked to an attorney representing the company and said I would not sign the waiver without a full accounting of hours and periods. Is it in accordance with WA or Federal wage rules, who knows?