Working overtime should mean extra pay

Q: I work for a small telecom consulting company as a full-time employee with salary and benefits. How can the company get away with making us work 10-to-12-hour days and weekends without overtime compensation? The company always says it makes up for it "in the bonus," but that really isn't the case at all. It's like a white-collar sweatshop. And the conditions we work in are terrible, with 18 to 20 people in one room and two of the four doors blocked. What do we do?

A: Bill Bethune, a Tysons Corner lawyer who represents corporations in employment disputes, said overtime pay rules are national in scope and specific, albeit occasionally the subject of conflict in labor disputes.

The basic rule is that workers are entitled to time-and-a-half overtime pay for any hours they work beyond 40 in a seven-day workweek, no matter whether the workweek is the traditional Sunday-to-Saturday period or some variation, as set by the employer.

And in some states, such as Virginia in this case, the employer is obligated to give the worker at least one day of rest in that seven-day period.

"Assuming this person is not exempt from the Fair Labor Standards Act," Bethune said, "he'd be entitled to overtime. The exemptions are few and narrowly construed."

He said overtime pay does not apply to executives, who are presumed to be on call to handle necessary work no matter the number of hours it takes; administrators, such as human resources personnel; outside sales staffs; and those deemed professionals, such as lawyers, engineers, doctors, accountants and computer programmers.

"If he doesn't fit one of these exemptions, he's covered," Bethune said.

With layoffs an everyday occurrence now, workers sometimes endure the long hours without the overtime pay "because at least you've got a job," he said.

But he said workers can seek to enforce the overtime provisions if they wish by calling the Labor Department to request an investigation or by suing the company. He said the burden is on employees to show how much overtime they worked.

There is a limit, however, to the period for which an employee can claim back overtime -- two years if the violation by the company was inadvertent, three years if it is proved to be intentional, he said.

Bethune said that if the employees in this case think their working conditions are unsafe, they should ask local fire marshals or the federal Occupational Safety and Health Administration to investigate.