Monday, April 28, 2014

Overtime Pay in South Carolina

More than forty hours a week, whew! That is a lot of time to work on a weekly basis, but we do it. And the law recognizes both of the same. Employers may be required to pay overtime to an employee who works more than forty hours in a weekly pay period. The Fair Labor Standards Act (FLSA) discusses the rules and regulations relating to overtime pay. But when it looks like an employer may be required to pay overtime to its employee, there may well be an exception to the general rule that exculpates the employer from the overtime pay requirement, as is often the case with agricultural labor and migrant farmworkers.

I often hear from people that they are paid by their employer as an independent contractor, that no taxes are taken out or paid by the employer, and they are issued a 1099 each year for tax purposes. This type of unscrupulous behavior by employers results in additional burdens upon the employee and benefits to the employer that the employer is not otherwise entitled to under the law and the employee should not rightly have to bear under the law. People who believe they are misclassified as independent contractors by their employer and should correctly be classified and paid as an employee may file a request with the Internal Revenue Service (IRS) to investigate and determine whether the person is an employee or independent contractor.

Presuming that your employer at least has you correctly classified as an employee and not as an independent contractor, I often hear from people that they work more than forty hours a week and are not compensated for their work. It is not so common that folks work more than forty hours a week and are compensated at their normal rate of pay, but it is much more common that people are simply not compensated at all for work above and beyond forty hours. Sometimes people believe that since they are paid on a salary basis that they are not entitled to any overtime pay or have their own conceptions and understandings of justifications for the non-payment.

Most commonly, people are often not compensated at all for work above forty hours a week because the employer is unscrupulous and the employee works at the mercy of the employer. Due to socioeconomic conditions and other circumstances, the employee may have little or no choice and must continue working under these absurd conditions. Employers may pay their employees a flat rate for a day's worth of work, for a week, or for a particular job, and without reference or concern as to the number of hours worked in the pay period or the law. The employee may even be required to clock out upon reaching forty hours for the week, and the employer may well pay in cash to avoid detection and evidence of the same.

The FLSA is one law that may provide a legal remedy to an aggrieved employee. Also relevant and possibly helpful would be the South Carolina Payment of Wages Act which provides for treble, or triple damages, and attorneys' fees, costs, and expenses. Are you entitled to overtime pay for hours worked above and beyond forty in a week? Are you correctly classified as an employee or misclassified as an independent contractor? If you have any questions, feel free to contact our employment attorneys in Hilton Head or Charleston, SC.