Hourly Employees

Most hourly employees governed by the FLSA are entitled to overtime for time worked in excess of forty hours per week. This is a federal law, but Tennessee does not have any special state overtime provisions so most persons will be subjected to this rule. The FLSA work week is a standard seven (7) consecutive day schedule. Any time actually worked over 40 hours in a work week is “FLSA overtime.”

In Tennessee, FLSA overtime pay for hourly and other nonexempt employees is determined by calculating all the time the employee has actually worked during the seven day work week. Thus, you must determine how much time a nonexempt employee has actually worked in a work week to determine if the FLSA overtime provision is triggered. That is not to say that you don’t still have an unjust enrichment claim for working off the clock, but to trigger the FLSA overtime provision and the extra legal damages that come with it, you must work more than forty hours in a given work week.

    So what counts as work time?

Work time is the time you spent at work performing job-related activities. This can be on-the-clock time or off-the-clock time, so long as it is time spent on job-related activities to benefit the employer. For most people, being at work and putting on makeup off-the-clock is not a job-related activity. However, coming in and turning on your computer and reading memorandums before you log in is a job-related activity. The employer does not have to specifically tell you to do the work for it to count, so long as they could have found out by looking or if they implicitly should know the work must be done prior to clocking in. Generally speaking, any time you spent at work is work time, including shift-time that is nonproductive time like short breaks.

What about outside of work? Work-related things done at your home or at a place other than the normal work site is still work and counts towards your work week and it is not always required to be approved or authorized so long as the employer knows or should have known it was happening. It is the responsibility of the employer, not the employee, to “control the work” of its workers. If an employer does not want you to perform any work, it must prohibit you from doing so or it must include that work time in the required FLSA pay computations under the FLSA.

Think you have been working more than forty hours and not being compensated for it as required by law? Contact Morgan Smith at (615) 620-5848 or use the form below:

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