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Day Rate Workers Overtime Pay Attorney

Paying employees a fixed rate every day can be a great way to fairly compensate employees who work for different amounts of time each day. Unfortunately, it can also lead to employees missing out on benefits that are owed to them, like overtime pay. To see if you qualify for overtime pay as a day rate worker, schedule a consultation with a day rate worker overtime pay attorney.

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Helping Workers

The attorneys at Ferraro Vega San Diego Employment Lawyers aim to help employees who feel unrepresented or shortchanged at their jobs. They are well-versed in employment law and have successfully represented clients in a diverse range of industries, from small businesses to large companies. From wrongful termination and discrimination to FLSA violations, Ferraro Vega San Diego Employment Lawyers seek to help employees get the compensation they deserve.

Who Qualifies as a Day Rate Worker?

A day rate employee, also known as working per diem, is an employee who makes the same amount of money each day they work, regardless of their hours. This type of employment is common in the fossil fuel and construction industries, but it also sometimes applies to white-collar contractors who work on a per-project basis. Here are some additional criteria that apply to day rate workers:

Work Day: The rate of a day rate worker is usually calculated based on a working day of eight hours.
Wages: Due to day rate workers being treated differently than full-time employees, they are usually paid more than the typical full-time worker to compensate for the lack of benefits they receive. While the number varies based on the specific job or industry, most day rate workers make around 50-150% more than a typical full-time employee makes each day.
Benefits: Since day rate workers are not salaried or hourly employees, they often do not receive the same amount of benefits as other types of employees, like health insurance or retirement programs.
Overtime: Day rate workers are usually considered employees rather than independent contractors. This means that they are usually entitled to overtime pay if they work more than 40 hours in a week.

Why Do I Need an Overtime Pay Attorney?

As an individual, it can be difficult to fight against a business that is violating FLSA overtime laws. Seeking legal counsel can be an effective way for a company to listen to you and your needs. An employment lawyer can also start a collective action claim, in which they can represent multiple plaintiffs. If multiple employees are being treated in a similar manner, a collective action claim can help everyone involved feel more represented.

The Fair Labor Standards Act

The Fair Labor Standards Act, or FLSA, is legislation created by the federal government to protect the rights of employees. This act provides certain details on wages that employers must follow, including:

Minimum Wage: The federal minimum wage is $7.25 per hour, which is outlined in the FLSA. Many states have wage requirements that are above the federal rate.
Overtime Pay: If an employee works over 40 hours in one working week, they must be paid overtime pay for any additional hours over 40 that they work. This rate is 1.5 times their standard amount of pay. Overtime pay applies to most hourly and day rate workers, with limited exceptions.
Recordkeeping: Employers must keep records of their employees, including how long they work and how much they are paid. Some employers incorrectly classify their employees, which affects whether FLSA laws apply to them.
Child Labor: The FLSA also outlines specific laws regarding minors and how they are able to participate in the workplace. Individuals under 18 have additional rules and restrictions at work for their protection.

Day Rate Workers and the FLSA

In 2023, the U.S. Supreme Court ruled that day rate workers are considered employees instead of independent contractors and are therefore entitled to overtime pay as outlined in the FLSA. If a day rate employee works over 40 hours in a given week, they are entitled to 1.5x their weekly hourly rate, which is calculated by their day rate divided by the hours they have worked.

It is sadly common for companies to misclassify day rate workers as independent contractors or hourly employees so that they do not have to pay them overtime. This is especially common in certain industries, including:

Inspectors: Individuals who inspect physical materials, like tanks, drills, and other utilities, are often overlooked in FLSA considerations. This also applies to other fields, like safety inspectors and vendor inspectors.
Construction: Day laborers and some supervisors are paid on a daily basis and qualify for overtime pay according to the FLSA.
Fossil Fuels: Tool distributors and engineers, along with pipeline constructors and inspectors, are typically day rate employees who qualify for overtime pay.

If you believe that you are not receiving overtime pay as a day rate employee, contact an FLSA attorney to review your case.

Exempt Employees

Certain workers are not protected under the FLSA, regardless of their compensation method. The most common categories of employees that are not subject to FLSA laws include:

Executives: Executives must make more than $684 weekly and must have a primary job function of managing other workers or the business as a whole. They have to oversee at least two employees and should have the power to hire, fire, promote/demote, and make other important decisions regarding employees.
Administrative Workers: Similarly to executives, to be exempt from the FLSA, administrative employees must make more than $684 per week as well. To qualify as an administrative worker, an employee must primarily engage in administrative tasks for a company. They typically perform non-manual labor and have significant decision-making power as to how to perform their job responsibilities.
Professionals: There are two types of professionals that are exempt from the FLSA: creative professionals and learned professionals. Both must earn more than $684 weekly, but each varies in the types of tasks they must perform. Creative professionals must engage in some creative tasks as their primary work responsibility, while learned professionals must have advanced knowledge in a field and use it to perform intellectual tasks.
High-Earning Workers: Employees who make $107,432 or more annually and at least $684 weekly are considered highly compensated employees and, therefore, do not qualify for FLSA protection.
Employees in the Computing Field: Certain employees, like computer analysts and software engineers, do not qualify for FLSA protections if they make more than $684 a week or $27.63 an hour.
Salespeople: An employee is considered an outside salesperson if they make sales on behalf of a company away from their physical business location. Salespeople can include those who sell specific products as well as those who acquire contracts for a company’s services.
Blue-Collar Workers: Blue-collar workers often engage in manual, repetitive labor, which does not categorize them as executives, administrative workers, or professionals. If a blue-collar worker is in a non-management role, they probably qualify under the FLSA and are not exempt.
First Responders: Due to the important nature of the role of first responders, they do not fall under the executive, administrative, professional, or highly compensated categories and are thus protected under the FLSA. This applies to most employees, regardless of their rank or how much they are paid.

How to File a Claim

If you suspect that you should be getting overtime pay as a day rate employee but are not, it is important to act quickly to try to get the money that you are entitled to. This list is meant as a general outline of how the process works:

An employee first files a claim with the U.S. Department of Labor so that they can review the case. While an employee is free to do this on their own, it is recommended to work with an FLSA attorney to ensure that this claim is filed correctly and with sufficient evidence to prove the claim as much as possible.
The government reviews the claim. If they deem it to be viable, they allow each side to collect evidence regarding the plaintiff’s claim. This evidence usually consists of documents, like employee records and pay stubs. Under the FLSA, an employer is required to effectively keep records about their employees to ensure that they are being compensated correctly.
During this process, the defendant and their legal team can come to the plaintiff with a settlement proposal. Settling the matter out of court can save both sides significant amounts of time and legal fees, but it is possible to accept too small of a settlement without an employment lawyer on your side to help plan your next steps.
If a settlement cannot be reached, the claim goes to trial, and the court determines whether the employer violated the FLSA. If the defendant wins the trial, they can be paid up to twice as much as the original overtime amount that they were owed to begin with. Most employment lawyers are paid with a contingency fee, so they can take a portion of the winnings if they help their client succeed.

The FLSA also has provisions for issues like retaliation. If an employer takes negative actions against you, like demoting or firing you for filing a claim, this is considered retaliation and can result in additional fines for them.

Contact Ferraro Vega San Diego Employment Lawyers

Ferraro Vega Employment Lawyers, Inc., specializes in handling complex employment cases on behalf of our clients. We have helped many past clients recover far more compensation than they expected and streamlined their case proceedings significantly. A California warehouse workers’ rights attorney is essential if you intend to seek fair compensation for an attorney’s illegal mistreatment and/or violation of applicable labor laws. Contact us today to schedule a free consultation with a warehouse workers’ rights attorney you can trust to guide you through your proceedings with confidence.