What can an overworked employee do?

UPDATED: Sep 30, 2022

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What can an overworked employee do?

My friend is a caregiver for a disabled man. When he first started he signed a paper that he would not work more than 40 hours. This was signed for a program that the mom of the disabled man are going through. The mom finds people to hire and they go through the program to get hired. Finding other people to do this job has proven hard potential employees will not show up for training or they will not work the job for more than 1 or 2 shifts, so he is the only one doing the job. The hours are 9-11 hours a day. So working every shift every day, he is working way more than 40. They originally told him that he could not carry his hours over to the next week if he works more than 40 hours, however he puts 40 hours on every time sheet. He is sick of the job, but he wants to be paid the money that he has earned over the months of overtime he should be getting. If he just quits, he won’t get his

money. He isn’t sure of the actions he can take without losing his job and not being able to get the money he has earned.

Asked on August 8, 2016 under Employment Labor Law, New Mexico


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

Legally, if he is not exempt from overtime--which he presumably is not; for example, ALL hourly staff are non-exempt--he *must* be paid overtime whenever he works 40 hours in a week. That is the law (e.g. the federal Fair Labor Standards Act, or FLSA). So if your friend works 9 - 11 hours for, say, 6 days a week, he on average is working 60 hours per week and must be paid overtime for 20 of them. He can bring a complaint to the state department of labor; he can potentially receive back base pay (e.g. if he was only paid for 40 hours) and overtime for the last two years. The employer may not retaliate againt (fire) him for bringing a wage complaint: that is itself illegal, and can lead to further liability on their part.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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