The Fair Labor Standards Act (FLSA) requires employers to pay overtime wages to employees, who are eligible for such wages. Not all employees are entitled to overtime pay because the FLSA provides exemptions. Whether an employee is exempt or nonexempt usually depends on 1) how much the employee is paid, 2) how the employee is paid and 3) the type of work the employee does. For the exemption to apply the employee must be paid at least $455 per week on a salary basis. The type of work also is a factor and the Department of Labor has a list of common exemptions.

When a nonexempt employee works overtime, he or she is entitled to overtime wages. The employee is entitled to overtime compensation even if the employer has a policy of no overtime without prior authorization. Overtime pay must be given, even if it is unauthorized; however, the employee could be disciplined for working unauthorized overtime hours.

If an employer does not pay a nonexempt employee the earned overtime compensation, the employee would have a claim under the Fair Labor Standards Act. As discussed previously on this blog, the Nebraska Wage Payment and Collection Act provides a method to collect the agreed upon wages that have were earned but not paid; however, overtime compensation might not be recoverable under the Nebraska Wage Payment and Collection Act. The Court of Appeals for the Eighth Circuit recently ruled in Acosta v. Tyson Foods and Gomez v. Tyson Foods that the Nebraska Wage Payment and Collection did not apply to the employees’ overtime wage claims because there was no evidence to show that the employer and the employees agreed to overtime payments. The employees in the Tyson Foods cases also brought FLSA claims and were initially awarded overtime compensation but the Eighth Circuit overturned the judgment because the employees did not follow the correct procedure in bringing a class action lawsuit.