The Fair Labor Standards Act does not require an employer to pay an employee “double time” or “time and a half” for working on holidays. Additionally, an employee is not entitled to additional pay under the FLSA for weekend or night work. However, an employer can separately contract with their employees to offer this additional pay.
As an employee, you have certain rights, including the right to fair pay for hours worked. Under federal law, this also includes minimum wage, as well as overtime pay for nonexempt employees who work more than 40 hours in a single workweek. Unfortunately, employers do not always treat their employees fairly. If your employer has failed to pay you the wages you have earned, you have the right to take legal action against your employer.
At the Law Office of J.J. Talbott, we are proud to stand up for employees’ rights. Our Pensacola overtime and unpaid wages attorneys can represent you in your claim for minimum wage violations, unpaid overtime, and other unjust employer conduct. We have extensive experience and a long track record of success in holding both large and small employers accountable.
Minimum Wage Laws in Florida
All states—including Florida—must follow federal minimum wage standards under the Fair Labor Standards Act (FLSA). For 2022, the federal minimum wage is $7.25 per hour, meaning that, with some exceptions, no one in any state may be paid less than $7.25 per hour. Additionally, each state has its own minimum wage laws.
In Florida, the minimum wage for 2022 is:
- $11.00 per hour
- $7.98 per hour for tipped employees
In 2023, the state minimum wage will increase to $12.00 per hour (effective September 30, 2023). According to the Florida Constitution, the minimum wage for tipped employees must also increase to $8.98 per hour.
Why Are Tipped Workers Paid Less?
Employees who receive tips in Florida have a lower minimum wage than other workers in the state because they are expected to “make up” the difference in tips for each hour worked. The state constitution allows an employer to pay a tipped employee no less than $3.02 less than the state minimum wage. This $3.02 can then be taken by the employer as a “tip credit.” Essentially, this allows the employer to count some of the employee’s tips toward the employee’s overall hourly pay.
However, if an employee does not make the difference between their direct wage and the state’s minimum wage, the employer is required to pay this difference. Additionally, employers must clearly explain tip credits to their employees in order for those tip credits to be considered “valid.”
Florida Overtime Laws
The state of Florida does not have its own set of overtime laws. As such, federal overtime laws under the FLSA apply.
Under the FLSA, employers must pay nonexempt employees overtime at a rate of 1.5 times their base pay for any work performed beyond 40 hours in a single workweek. Employers are allowed to determine what constitutes a “workweek,” meaning the workweek can begin on any day of the week. However, the workweek must be seven consecutive days.
Federal law does not require overtime for work performed on weekends or holidays unless working on one of these days otherwise qualifies as overtime (meaning the employee has worked more than 40 hours in that workweek). Additionally, employers may not average hours worked over a two-week period to reduce or avoid paying overtime, even if employees are paid biweekly.
Who Is Exempt from Overtime?
It is important to note that overtime only applies to nonexempt employees.
An employee is considered “exempt” from overtime in Florida if they:
- Are an executive, administrator, professional, or another salaried employee
- Earn more than the set weekly/annual limit to be considered exempt
The set weekly and annual limits to be considered exempt from overtime were raised in 2020 under federal law. These limits vary depending on the employee’s profession.
For example, most salaried employees are exempt if they earn $684 per week or more, or $35,568 per year or more. For employees working in the motion picture industry, a weekly rate of $1,043 or above earns exemption status, while “highly compensated employees” do not qualify for overtime if they earn $107,432 a year or more.
What to Do If Your Employer Doesn’t Pay You Fair Wages or Overtime
If you believe that your employer has failed to pay you fair wages, including overtime pay, we strongly recommend that you reach out to an employment lawyer as soon as possible. You could have grounds to sue your employer for lost wages, back-pay, and other damages—but you must act quickly, as there is a statute of limitations on these cases. Generally speaking, you have about four to five years to file your claim, depending on the specific details of your case.
At the Law Office of J.J. Talbott, our Pensacola unpaid wages and overtime violations attorneys can meet with you right away to discuss your legal rights and options. We are prepared to take immediate action on your behalf and will tirelessly pursue justice on your behalf.
Am I entitled to “double time” or “time and a half” for working on holidays?
Am I entitled to mileage for driving back and forth to the doctor?
If an employee has a valid workers’ compensation claim, they are entitled to be paid mileage to and from all medical appointments. However, the employee must keep a list of the dates that they went to the doctor and the number of miles which they traveled.
This information should be submitted to the insurance carrier or your attorney who will submit it to the carrier on a regular basis. While medical mileage may not add up to a lot of money, it does help compensate the employee for having to drive to the doctor. Additionally, it keeps your workers’ compensation claim open. Please note that if you do not have a vehicle or you’re not able to drive, then the insurance company is required to provide you transportation, you just have to request it.
Am I exempt from the overtime requirements if I’m paid a salary instead of hourly?
Not necessarily. This is a common misconception held by employees and their employers. It is true that in order to fall under one of the white-collar exemptions as an executive, administrative or professional employee, you must be paid on a salary basis of at least $455 per week. However, there are other requirements in addition to the salary basis test. For each category of exemption, the employee must meet certain criteria to be exempt. See our page on Overtime Exemptions for more information.
Can I get overtime if I am paid a salary?
The decision of whether you are entitled to overtime is not solely based on whether you are paid a salary, but it depends on whether you meet the requirements of the specific overtime exemption (administrative, executive, professional, etc.).
Assuming that your job activities meet these exempts, then you still must be paid a salary of at least $23,600 annually or $455 per week. If your employer does not pay you at least $23,600 annually or $455 per week, then that may void their ability to claim that you are exempt from overtime, which would entitle the employee to overtime.
Can my employer make me work overtime?
Generally, an employer can require employees to work more than 40 hours in a workweek, and can even discipline or fire employees for refusing to work over 40 hours. The FLSA does not establish the number of hours that an employer can require employees to work in a given week or day. Instead, the FLSA only requires the employer to provide overtime pay for hours worked beyond 40 hours in a workweek.
Please note that under Florida law, there is a separate statute that entitles an employee to overtime if the employee is paid on a daily rate and the employee works over 10 hours in a work day (and is not otherwise exempt from overtime). In other words, if the employee, is paid a specific amount per day, and the employee works more than ten (10) hours in a workday, then the employee is entitled to overtime for all hours that they work over ten (10) hours in a work day.
Does my employer have to pay me overtime?
The FLSA requires that all “non-exempt” employees should be paid overtime for all hours worked in excess of 40 hours per work week.
If you are entitled to overtime, the FLSA requires employers to pay overtime at a rate of no less than one and one-half times the employee’s regular hourly rate. There are some exceptions for occupations such as law enforcement, firefighters, and health care workers.
Please note that the FLSA also allows exceptions for employees that are classified as exempt under the “Administrative Exemption”, “professional exemption”, and the “Executive exemption”/”management exemption.” To learn more, click here.
How Long Do I Have to File a Lawsuit for Unpaid Wages and Overtime?
The FLSA provides for a two-year statute of limitations for employees to seek payment for unpaid minimum wages and overtime pay (extended three years if the employer willfully violated the FLSA). This means that once the lawsuit is filed, the employee can “look back” for two (2) years (and up the three (3) years for willful actions).
The statute of limitations prevents the employee from recovering unpaid wages for the period greater than (2) years before the date that the Complaint was filed (and up the three (3) years for willful actions). As such, if your employer did not pay you at least the minimum wage for every hour that you worked or did not pay you overtime, you need to speak with a wage and hour attorney immediately to protect your rights.
What Does It Mean to Be Exempt From Overtime Under the FLSA?
All employees are entitled to be paid overtime unless they fall within a specific overtime “exemption. Generally, there are three main exemptions – executive, professional, and administrative. If your position qualifies under one of these exemptions, then you are not entitled to overtime pay under the FLSA. However, it is not the job title that dictates whether the position is exempt from overtime and it does not matter if you agreed to work as a salaried employee. Instead, an evaluation of the job duties is necessary to determine if you are an exempt employee. This means that even if you agree to be a salaried employee, or if your job title sounds like it would be exempt, you may still be entitled to overtime as long as your job duties do not satisfy the exemption. Some other common exemptions are
- Commissioned salespeople who work in retail establishments
- Computer professionals earning at least $27.63 per hour
- Drivers, driver’s helpers, loaders, and mechanics employed by certain motor carriers
- Farm workers employed on small farms
- Automobile dealership mechanics, parts workers, and salespeople
- Salaried executive, administrative, professional, and outside sales employees
What Is “Chinese Overtime”?
Chinese overtime also referred to as the fluctuating workweek, is a method of paying overtime to an employee when the employee works over 40 hours a week, without destroying some of the benefits of having the employee be an “exempt employee.”
Under this method of paying overtime, the employer pays the employee a fixed salary for work up to 40 hours a week, but on the occasions when the employee works over 40 hours a week, the employer only has to pay half-time for the hours over 40 hours a week. To comply with the FLSA and qualify for “Chinese Overtime”, the employee’s hours must vary from week to week, that rate of pay used to calculate the employee’s half-time overtime rate must not fall under the federal minimum wage, and the employer and employee clearly understand that the salary will cover all hours worked in a workweek, even if only a small amount of time is worked. While this is a lawful pay practice if implemented correctly, mistakes and abuses that deny workers proper compensation are considered FLSA violations.
What Is Minimum Wage? Does My Employer Have to Pay Me the Minimum Wage?
The Fair Labor Standards Act (FLSA) establishes a federal minimum wage requirement for all employees in the United States. Currently, the Federal Minimum Wage is $7.25 and applies to all employees employed by:
- Businesses with annual gross revenue of at least $500,000;
- Smaller businesses that are engaged in interstate commerce or production of goods for interstate commerce;
- Individual employees that are employed in jobs where the employee is engaged in interstate commerce;
- Employees of federal, state, or local government agencies, hospitals, schools, and domestic workers
However, please note that the State of Florida has its own minimum wage law, which is higher than the Federal Minimum Wage. Currently, the Florida Minimum wage is $8.25 per hour and increases yearly.
Can My Employer Deduct the Credit Card Service Charge From My Tip When the Customer Pays With a Credit Card and Puts the Tip on
Yes. The law does allow the employer to make this deduction. So, for example, if the credit card company charges 3% of the total amount of the transaction, your boss can withhold 3% of the tip and only give you 97% of the tip amount.
Can My Employer Fire or Punish Me if I Make a Claim for My Unpaid Wages?
The Fair Labor Standards Act includes an anti-retaliation provision that forbids employers from taking adverse action against employees who attempt to enforce their rights under the FLSA (formally or informally). This means that if an employee files a lawsuit, inquires about, or complains about not receiving unpaid wages, and the employer takes adverse action against the employee, then the employee may be entitled to lost wages and mental anguish damages.
Can my employer hold my last paycheck? When does my employer have to pay me my last paycheck?
There is no requirement under the FLSA for the employer to pay you your final paycheck within a specific number of days. However, the FLSA does require the employer to pay an employee their last paycheck at the normal payday interval when other employees should be paid for that time.
Additionally, we are routinely contacted by employees whose employers take monies from their last paycheck for various reasons. Assuming the employee did not sign an agreement allowing the employer to take money from the employee’s last paycheck, then the employer cannot take money from the paycheck if doing so would reduce the employees below the minimum wage.
If an employer improperly reduces the employee's paycheck below the minimum wage, then the employee may be entitled to the amount of the unpaid wages, liquidated damages, and attorneys fees and costs.
Does the FLSA require my employer to pay me for meal breaks and rest periods?
Unfortunately, the Fair Labor Standards does not require employers to provide meal breaks or rest breaks for employees. Additionally, the State of Florida doe not require employers to provide these reset breaks. However, if the employer provides rest periods of 20 minutes or less, then these are generally considered hours worked and the employee should be paid for these breaks.
My job description classifies me as an exempt employee. Does that make me exempt?
Not necessarily. What matters is whether the job duties which you actually perform meet the criteria for exemption from overtime. There are different tests that apply to the exemptions for executive, administrative and professional employees, outside salespeople, and workers in certain computer positions. Don’t rely on your job description or your boss’ assurances. If in doubt about your exempt status, contact our office for a free case review.
My restaurant imposes an automatic 15% gratuity on parties of seven or more. Does that amount count as a tip?
Even though it may be called a gratuity, this required amount is a service charge and not a tip. These charges become part of the employer’s gross receipts and are not counted as tips received, even when they are paid over to you by your boss. The money paid to you can go toward your employer’s obligation to pay you the minimum wage, but it is not counted when determining whether you receive enough money in tips to be considered a tipped employee under the Fair Labor Standards Act (FLSA).
Employers can—and do—violate employee rights in numerous ways when it comes to fair pay.
Some of the most common hour and wage violations include:
- Unlawful wage deductions
- Paying below the minimum wage
- Failing to pay overtime to nonexempt employees
- Forcing employees to work “off the clock”
- Failing to pay last paychecks
- Failing to pay employees for short breaks
- Misclassifying employees
- Illegal tip pooling or tip collection
- Combining workweeks
- Failing to pay overtime when an employee does not obtain preapproval
- Failing to pay employees for mandatory meetings and trainings
- Requiring after-hours or take-home work
- Failing to provide adequate rest or meal breaks
Essentially, any employer conduct that violates state or federal hour and wage laws constitutes a violation of your rights. As an employee, it is important that you know your rights so that you can take appropriate legal action when necessary.
We help employees in Pensacola, Fort Walton, Panama City, and throughout the Florida Panhandle and southern Alabama fight for their rights. Our experienced attorneys can answer any questions you may have as you navigate the legal process. We provide highly personalized representation and remain consistently available to our clients.
Our clients include independent contractors, restaurant workers, tipped employees, professionals, executives, and others who have had their rights violated by an employer. Regardless of your situation, the Law Office of J.J. Talbott can help.
A Lawyer Who Cares
Whether you’re one of the 250,000+ Floridians injured in an auto accident each year, or you’ve suffered an injury at work and your employer’s insurance company is not co-operating, the Law Office of J.J. Talbott can help get you the compensation you deserve. Founder, J.J. Talbott is among the 1% of trial lawyers in the United States who have won multi-million dollar verdicts and settlements.Meet J.J. Talbott
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