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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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I am considered production worker under FLSA, I am on salary

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I am considered production worker under FLSA, I am on salary and work on average 9 or 10 hour days, 5 or 6 days a week. My employer is not paying me overtime. I have been with the company for over 3 years and this happens every week. The schedule that I am being given says my start time only. I am not filling out the time cards. Could you give me any suggestions on what should I do to prove that I work those hours. There are cameras in my workplace, but I do not have access to the recordings.
Hello and thank you for entrusting me to answer your question.

Under Florida law, all workers are entitled to overtime compensation for hours they work in excess of 40 per week unless their position falls within a statutorily enumerated exemption from the law.

No exemption from overtime is likely to apply to a production worker unless he or she is acting primarily as a manager on the factory lines, in which case the "executive exemption" from overtime might apply.

Absent any applicable exemption, the employee would be entitled to overtime and his or her salary would be presumed to compensate only for a standard 40 hour workweek.

So, if an employee is receiving a salary of $800/week but working 45 hours per week, the law would presume that the $800 compensates the non-exempt employee only for their base 40 hours of work. That would mean their hourly rate of work is $20/hr. The remaining 5 hours of work per week would be compensated at 1.5 times the employee's regular rate of pay, meaning $30/hr. So, the employee would be entitled to an additiona $150 in pay ($30 x 5) under the FLSA.

Fortunately, your personal testimony as to the number of hours you are working is sufficient to initiate a claim for unpaid overtime. Once your claim has been initiated (either in civil court or with the Department of Labor), you will have the authority to demand production of the video footage which will corroborate how long you are working.

Generally speaking, overtime claims of this kind fare much better in civil court by filing a lawsuit with the assistance of a local employment law attorney. They will assist you throughout the entire process, and under the FLSA, your attorney fees are reimburtseable if you prevail.

Furthermore, most attorneys are willing to assist claimants on unpaid overtime disputes on what's known as a contingency fee basis.

If you don't know, a contingency fee arrangement is one in which the attorney receives a portion of the client's settlement or award as his payment, typically 1/3 of the total amount. If there is no recovery, the attorney does not get paid. The client never pays until the settlement or award is obtained (except perhaps to cover the filing costs for his claim).

To locate a local Florida employment law attorney who can assist you with your case, see here:

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
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