Am I entitled to overtime pay if I’m per diem and worked over 40 hours?

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Am I entitled to overtime pay if I’m per diem and worked over 40 hours?

I worked for a company per diem consistantly for years and did plenty of overtime hours at the same flat rate. Was I supposed to get overtime pay even though I was per diem? If so, when did this law take effect. I was asked to switch to staff 3 years ago because the company was audited. Is something fishy here?

Asked on June 26, 2019 under Employment Labor Law, New York

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

As a general rule, if you are paid on an hourly basis then you are entitled to OT; this is federal law (Fair Labor Standards Act). Accordingly, you are owed overtime pay for all hours that you worked over 40 hours in a work week. At this point, you should consult firectly with an employment law attorent or contact your state's Department of Labor's Wage and Hours division. Your employer may be forced to pay your missing overtime wages. Further, you should know that, it is illegal for an employer to retaliate against an employee who has sought fair compensation under overtime laws. 

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

Yes, you were entitled to overtime. Under wage-and-hour law, like the Fair Labor Standards Act or FLSA (which has been in effect for decades), if your are not salaried, you cannot be exempt from overtime--which means you should have been paid overtime.


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