I touched a little bit on this in another thread a while ago, but I was just looking for some kind of verification. My girlfriend works at a restaurant where various times she was not paid for overtime (hours worked over 40 a week). Instead what would happen is either

a) they would pay her overtime as straight pay
or
b) if she worked over 40 hours one week and under 40 hours the next, they would take the overtime hours from the first week and add them to the second week to make it seem as if nothing was worked over 40 hours.

Unfortunately, she is not able to locate any of her pay stubs that show an obvious 40+ hour week of straight pay. (she does have two checks marked as 40.15 hours and 40.06 hours) paid as "straight pay". I just don't know if the .15 and .06 are considered to be "overtime".

So my questions are as follows...

1) If she were to file a claim, does she need to be able to prove that she worked hours, or is the burden on that of the restaurant to prove that she didnt work those hours?

2) also if a claim is filed, is it possible that the employer could just manipulate the time schedules to make it seem like she never worked past the 40 hours a week?

3) is a 40.15 or 40.06 hour pay stub (the only pay stubs she could locate) enough proof to say that she was not paid overtime?

Thank you

Okay, lots of questions. First off, I am no lawyer, but I do enough with business law, and I used to work for a place that had "mandatory" overtime.
(Long story, don't ask, I can't tell anyway.)

In the restaurant business, it is common practice to "hide" overtime. Most managers are paid a bonus at the end of the month, based on sales to employee hour ratio. This is also known as the labor percentage. Overtime is a killer for this percentage, because overtime must be paid at 1.5 times the normal rate, at the very least, with a few exceptions.

From the situation that you described, your girlfriend's job may be one of them. If she is a waitress, I assume that she makes tips. If so, she is what is reffered to as a "tipped employee".

Employees such as this, do not have to be paid the minimum wage (either state or federal) so long as their weekly tips make up the difference in the least. For example. The federal minimum is 7.25 (I believe now?) But as a waiter/waitress you are paid a wage of 3.25. You report 160 dollars worth of tips per 40 hour work week. This equivlates to the minimum wage, and therefore the employer is in compliance. Essentially for one day you should make at least 32 dollars in tips on average. If you are far below this, this is a situation that you need to address first.

Employers are required by federal law to pay the difference in wages if an employee's tipped income plus their normal wage does not equal the minimum wage.

To address the overtime issue:
I would assume that if your girlfriend is a waitress, than she is not salaried. Only in salary incomes may they juggle around hours like that. Salary is based upon a yearly income, with hours figured every pay period for overtime instead of weekly, and in this instace, most salaried people are under contract to have a longer than 40 hour workweek, with the payment for such awarded in perks and bonuses such as 401K, vacation time, or some other benefit from being employed in a salary posistion only. (Usually under contract in most states)

When applying the principal of overtime to hourly wage based employee's:
The federal law constitutes overtime as any time worked over the employee's normal workweek. The federal standard for full time employee's is 40 hours.
So in essence, no they cannot bounce around the hours like that. Even with a tipped employee. They must pay her overtime. However, the bad part is, the burden of proof is on you to prove that such activity was done. I would highly suggest keeping track of your hours seperately in a notebook at home.

Not in your car, not in your locker at work, but at home. Do not have other employee's over. You are fully within your right to keep track of your hours on your own, but if someone else sees such information, the wrong conclusion might be drawn, or it may get back to the manager who can retaliate on you unfairly. (This is not legal either, but in most cases it is hard to prove.)

Addressing straight pay:
Straight pay is a term used with tipped employees most often to define when they are being paid compensation when their tips do not equal minimum wage. Straight pay will be equivilant to the state or federal minimum wage.

For example... if you only make $120 in tips during the week, and work 40 hours, with getting paid a wage of 3.25, and the minimium wage is 7.25, then since only 30 hours were covered in tips ($4 an hour), you would recieve 30 hours wages, and 10 hours in straight pay.

Either way this does not cover overtime. Keep track, and before you report them to the labor board, first check your local state laws to make sure there isn't any exemption clauses with your particular job. Second, sometimes approaching the manager about the situation in a professional manner is enough. If the manager does not have an answer for you, or says something that you cannot verify, like "that is the way the computer does it", have the manager put it in writing about this inquiry and that is the response and SIGN IT. If the manager refuses, contact the manager above him. Follow the same process. If you get the same result, keep moving up. If the manager agrees and signs, you can take it to the next manager above if you like, or go directly to the labor board. This way there is no possibility for any manager to say they have no idea, because it is in writing. Once you have exhausted all possbilities, and if no one will sign, but you have evidence of overtime pay avoidance, then go to the labor board. (I also reccommend recording the dates and times that you contacted these managers, get phone records if possible. Such as if you call on your cell phone, some cell phones may record the duration of the call as well. The best way is to contact via cell phone, so there is record of contact, and then meet in person, with form available for them to sign.)

Generally if the manager is willing to sign a statement, they really have no control over the switching of hours, as it is all done remotely at a corporate office. But I promise you it is not a computer doing it. Generally accepted accounting practices prevent most computer programs from automatically doing this, as it is illegal.

With the amounts that you posted as overtime, of .15 and .06 I believe it was, realistically no labor board will spend any amount of time to investigate this. (Even though they are supposed to.) It must be at least an hour or more, unless there are previous reports about the business with evidence to support it. You can report the two infractions, and it will be noted on record, which may serve as more evidence in the future. (Remember most crimes start small.)

But for your girlfriend's job's sake, do not approach or talk to anyone at work about this matter. Do not talk to anyone about this who MIGHT know someone else that works there. I cannot remember if Michigan is a right to work state, but even if it is not, all a manager has to do is report your work is slacking, or cite a verbal customer complaint and can terminate you, unless there is a specific policy to termination. (In the case of non right to work states)

Just like a real case in court, you must gather evidence that removes all reasonable doubt that this is happening at your workplace. I personally believe it is from the situation you have described, as that is fairly common with restaurant, and other tipped employee jobs. Obviously though if you work 55 hours one week, and 25 the next, but get paid no overtime, unless you are salaried, or you agreed to this in writing when hired, (which even now is illegal I believe with the "recent" changes of the federal overtime standards)

A work week is 40 hours, and anything in excess of that forty hours per week must be paid at no less than 1.5 times the standard hourly wage of the employee. (Even if the hourly wage is 3.25)

When it comes to tips and overtime, the overtime takes precident, tips are not considered beyond forty hours, so long as the 40 hours is equivelent to minimum wage. This is also illegal if they are considering this into the overtime factor, and not paying it on that basis. For example, say you make $200 in tips for the week, but you work 42 hours. Because you made so much more in tips than minimum, it even covered the overtime, so you are just paid for 42 hours. That is illegal. They must pay for 2 hours of overtime worked, at 3.25 x 1.5 or higher. However the inverse for this is a bit different. Not only must they make up the difference in wages if your tips do not cut it for the week, they must also pay 2 hours at 7.25 x 1.5 or higher first compensate for the minimum wage, and then figure in the overtime.

As a tipped employee, your standard wage is (i.e.) $3.25/hr... WHEN the tips cover it. When they do NOT, your standard wage is the state/federal minimum or (i.e. again) $7.25. While that may be a headache for most companies to compute, I just did it in about 15 minutes, can't be that hard, the formula is a set formula. Most likely you are getting the raw end of corporate or personal greed, and you first need evidence, and then an investigation, all while maintaining professionalism. That may be easier said than done, but if you do report them, be professional like your job depended on it, because it probably does. Don't give them an inch. Although retaliation is prohibited for whistle-blowers, I guarantee you that law is like when segregation was first abolished in the 50's and made illegal. It still happened afterwards.

Above all else, if you feel like you or your girlfriend have any doubts, or are getting in above your head, or feel pressured or even fired for it, bring a business lawyer into it, explain your situation, and present your evidence. Most lawyers will take cases on payment plans with smaller retainers, based upon what they feel will be the response from the opposition. In some cases, you may need nothing down, and the lawyer will take a cut from a settlement in a suit you might file. (This is not your case, not yet anyway, but it has been done before)

Again, I am no lawyer, but I believe most lawyers worth their salt will back up what I am saying, with maybe a few modifications for local and state laws. Laws are different everywhere you go, but to see the federal ones I talked about, simply google "federal overtime laws" and go to the Government Labor Laws site, ending in ".gov" rather than ".com".

I hope that helped, and put you at a bit of ease.

The employer is not paying OT correctly (neither a or b is correct).

She needs to file a wage claim with the Mi. DOL (DLEG). She doesn't have to prove anything (ie the hrs. she said she worked). The employer has to prove she didn't. She should file the claim & the DLEG will go from there.

Ahh thank you betty, I totally forgot to address that...guess it's time for bed here.

Darkshine - your 1st post wasn't there when I started typing mine (my 1st post) but you got yours submitted off first.

First off the federal min. wage is not $7.25 but $6.55 & Michigan's min. wage is $7.40.

Also, she does not have to prove she worked the OT hrs. - the employer has to prove she didn't.

P.S. I don't know if there is anything else incorrect or not - I just scanned the long post - too long/too involved.

Ryan, just do as I suggested & have her put in a wage claim with the Mi. DOL. re her overtime.

P.S. I don't know if there is anything else incorrect or not - I just scanned the long post - too long/too involved.

Ryan, just do as I suggested & have her put in a wage claim with the Mi. DOL. re her overtime.

Ryan, I agree with Betty3 regarding filing the wage claim.

darkshine, legally the employee must record all tips received, the amount needed to cover the tip credit not withstanding. I didn't want the OP to infer otherwise from this comment:
You report 160 dollars worth of tips per 40 hour work week.
We don't know from the OP's post whether she is a tipped employee or not.

"Salaried" is merely a pay method. The key here is that the OP's friend is apparently nonexempt, as implied by the fact that she is paid on an hourly basis and therefore overtime is required.

"Right to work" has nothing to do with whether or not this issue is addressed with the employer. Right to Work means you don't have to join a union to work in a particular job for a particular employer. You probably meant "At will Employment".

Having a manager "sign a statement" is a non-starter and continuing to go above the direct manager's head, time after time, for something the employer is not legally required to provide is a career-limiting move.

Not "everything" is done at corporate. We know nothing about the OP's friend's employer. There may not even BE a "corporate".

There is no reason to get an attorney involved at this point.

There is no definition of "full-time" in federal law or almost any other state (there are a couple which define it for insurance purposes, but nothing else). The ONLY situation in which "40 hours" is a threshhold in federal law is for overtime purposes, nothing else.

That's all I can deal with at this time of the morning.

You did better than me Patty in taking the time to read it all completely - it was getting to be more than I could deal with. (getting too involved & too much to correct/clarify) I was just hoping the OP would have her submit the wage claim.

Sorry, I should have clarified in my first post. She is not a waitress, she works at a "fast food" restaurant. She does not receive tips. She is paid hourly. She is a shift leader/manager.

That's OK, would have saved everybody a lot of time, though. ;)

Okay, my next question is... does she need to know the exact weeks that she worked the overtime? or just that she knows she worked overtime at some point and did not get paid for it? And if she doesn't remember those dates, is there any way to request information on when an employee worked?

Like can she request like a work log for a whole year?

Thanks again for all your answers.

-Ryan

She can request it, the employer doesn't have to give it to her. Without paystubs, all she can do is make her best estimate. Look at the form; most claim forms require at least general dates and a claimed amount.

Just a thought, but employees can always keep their own records at home. One of those little 3x5 paper notebooks works just fine. Do not let the employer or co-workers to know about this. Do not use the employers computers, copiers, fax machines, or any other equipment to do this. Courts are generally impressed with paper notes taken at the time the hours were actually worked.

If the employee has their own computer at home with a spreadsheet program, it is very easy to transfer this information to the worksheet, along with paycheck information. Even (or especially) if the paystub information is marginal, as long as you have hard hours worked and minimum wage information, it is very easy to see if the employee is legally following MW and OT laws. Even if the employee does not have records going back years, being able to demonstrate a hard pattern over the past few months can allow the courts to infer that the pattern also occurred over the past few years. If nothing else, it puts the burden of proof on the employer to show otherwise.