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Seeking Unpaid OT Pennsylvania

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  • Seeking Unpaid OT Pennsylvania

    I have since left the employer in question due to medical reasons and believe I am owed back OT pay, sick days and vacation pay.
    I was mailed a letter before my employment began listing the terms of employment as follows:

    Position Grill cook/shift manager
    Salary position at $22000/year ( which came out to $423/week )
    1 Week paid vacation effective after 4 months
    3 sick days /year effective after 4 months
    Time and a half paid after 50 hrs worked in 1 week

    I have a few questions.
    Am I correct to believe I am entitled to OT after 40hrs even though the letter states otherwise?
    On my pay stubs there are not # of hrs worked stated. If I file a claim with DOL will they request the hours worked from my employer on my behalf? As I have no record of this even though I know I worked more than 40 hrs.

  • #2
    I am not familiar with all of your states regulations, but I believe (and others will hopefully correct me if I am wrong) you can file the claim with the DOL.

    Now, I just finished an audit with DOL for an employer who was not in compliance. The DOL is overwhelmed with case loads, so you really should have some documentation, paystubs would be ideal.

    In the cases that I have worked the DOL has often offered a "self-audit" for the past two years. This allows the employer to do an audit internally, which in turn saves the DOL time and money.

    From my dealings with the DOL, they will contact the employer (typically a 6-8month backlog) and give the employer the opportunity to self correct without fines. This is only my experience, other members on this forum may have had differing situations.

    The intent is for the employer to come into full compliance and pay back the employees in a timely fashion, typically 1 - 3 months. More than 3 months typically incurrs an interest charge enforced by the DOL.

    It is vital that you have something in the way of documentation though, otherwise the DOL is going to struggle.

    All the best, DC
    Not everything in America is actionable in a court of law. Please remember that attorneys are in business for profit, and they get paid regardless of whether or not you win or lose.

    I offer my knowledge and experience at no charge, I admit that I am NOT infallible, I am wrong sometimes, hopefully another responder will correct me if that is the case with the answer above, regardless, it is your responsibility to verify any and all information provided.

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    • #3
      Overtime is statutory, like a speed limit. There is nothing an employer could put in a letter that would make overtime go away if due.

      If you are paid less then $455/week it is extremely unlikely that you are Exempt from overtime. If you are paid more then $455/week, that does not make it likely that you are Exempt, just possible.
      - If you supervise 2 or more FTE, then you could be Exempt under the Executive exception.
      - If you make sufficient high level decisions in running the restaurant, then the Administrative exception is possible.
      - A burger flipping "cook" is non-exempt. The head chef at a 5-star restaurant is Exempt under the Professional exception. I have no idea exactly what the dividing line is between a "cook" and a "chef", other then to say that the title per se makes no difference. There is some type of very specific duties and professional credentials tests here, and I have no idea what it is.

      http://www.dol.gov/whd/regs/compliance/whdfs23.pdf

      Overtime Pay May Not Be Waived: The overtime requirement may not be waived by agreement between the employer and employees. An agreement that only 8 hours a day or only 40 hours a week will be counted as working time also fails the test of FLSA compliance. An announcement by the employer that no overtime work will be permitted, or that overtime work will not be paid for unless authorized in advance, also will not impair the employee's right to compensation for compensable overtime hours that are worked.
      "Reality is that which, when you stop believing in it, doesn't go away".
      Philip K. **** (1928-1982)

      Comment


      • #4
        However, in PA, neither sick nor vacation time is due at termination unless a written company policy specifically says otherwise, or past practice of the employer is to pay it out.
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

        Comment


        • #5
          Agreed. Past that, it would be very unusual for sick pay to be required to be paid out. I have heard people say that no states have such a requirement and I have heard people say that WV only has such a requirement. Either way works for me, not being in WV. I have had exactly one employer who paid sick pay on termination and that was a public university (and a very long time ago).

          Vacation paid on termination is more common, but not universal. A long time ago I took a look in my payroll library (BNA), and found 34 states with rules regarding vacation and termination). But many/most of those states rules could be summarized as "follow your company policy". The number of states that require vacation to be bought out no matter what the company policy says is not large. Probably fewer then 10. Possible more like 6.

          So certainly read the company policies. But maybe people are expecting more from state law then most state law is willing to provide. There is certainly no federal rules in this area.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

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