Workplace Special: the Overtime Pay Question

N E W   Y O R K, May 4 -- Although Americans work more than any other people in the world, not all are compensated their longer and longer workdays.

Are workers obligated to be productive for a longer time without adequate pay? That depends.

Who's entitled to overtime pay? In general, a non-tax-exempt employee who works more than 40 hours a week usually qualifies for overtime, according to Lawrence Lorber, an attorney at law firm Proskauer Rose in New York.

But job descriptions and duties have changed dramatically since 1971, thelast time regulations were issued regarding overtime pay. That means almost every decision about who gets overtime, whether the employee is salaried or non-salaried, supervisor or supervised, is ad-hoc, says Lorber.

If Asked, Should You Serve?

So can you refuse an employer's request to remain at work beyond your scheduled hours?

The short answer is no, maintains Lorber. Since the definitions are so vague, if an employer asks you to work beyond your scheduled hours, you are almost always legally bound to do so even without specified compensation, he explained.

That's mainly because conditions of employment are unregulated, unless you are in a union or work for the government. The implication is that legally speaking, you are at the office to "serve at the will" of the employer. There have been efforts by various states to change that, but no bills have passed so far, says Lorber.

But employees do have a right to ask a superior for a review of their job description to check if they qualify for overtime pay. The employer would have to respond to the request and specify whether he falls into the non-exempt category, putting in more than 40 hours a week.

The employer can initiate the review process as well. In fact, Lorber suggests that companies should routinely re-examine job functionality in order to avoid having the job fall into the overtime eligibility.

Once a job is defined as non-exempt and requires over 40 hours per week, the employer must pay time and a half of the normal hourly rate.