I have been working with this company now for a year and a half. I work at least 50 hours a week and am not paid overtime. They say they can't afford it. The problem is...I believe that my checks are short each week. They are different every time...I just want to know if they can legally not pay overtime for the hours I work. If they can't, should I tell them that I will not work more than 40 hours per week unless paid overtime. Also, I normally work about 10 hours/day...5 days a week, sometime 6. I don't know what to do. In case you are wondering, this is a restaurant I am talking about.

Thanks

If you are classified as a non-exempt employee (it seems as if you are), then, yes, you should be getting paid for overtime. You can start by filing a complaint with your state's DOL. You could file a lawsuit against your employer yourself but I would start with the DOL.

And, if you're not clear about what you're getting paid for, take your pay stub (if you get one; unfortunately, Nebraska law doesn't require the employer provide one, but most do), and ask.

However we are probably talking tips and tip credit here, and there may be a federal requirement.

http://www.dol.gov/esa/regs/compliance/whd/whdfs15.htm

If an employer elects to use the tip credit provision the employer must:

1) Inform each tipped employee about the tip credit allowance (including amount to be credited) before the credit is utilized.

2) Be able to show that the employee receives at least the minimum wage when direct wages and the tip credit allowance are combined.

3) Allow the tipped employee to retain all tips, whether or not the employer elects to take a tip credit for tips received, except to the extent the employee participates in a valid tip pooling arrangement.

And when you get paid the overtime, make sure you get paid at the correct overtime rate. Normally the employer pays the overtime at the tip wage rate usually $2.13, or the state minimum wage if applicable. The overtime rate for a tipped employee is the tip wages plus 50% of the applicable minimum wage whichever is higher federal or state...