Donald F. Fontaine : Attorney at Law

97 India Street 
Portland, ME 04101 

Overtime Pay

How do I pay the lawyer?
In most wage cases our clients do not pay any legal fees. This is because the wage laws that we enforce require an employer to pay the employee’s legal fees when the employee has to hire a lawyer to get the wages that are due. Link here 26 M.R.S.A. §626-A; 26 M.R.S.A. §670; 29 US Code §216(b).

In some cases the employer can be made to pay only part of the legal fees. In those few cases, the employee must pay the difference. However, the amount of attorney’s fees that the employee pays can never exceed 1/3 of the amounts collected for the employee. And, in all cases, there are no legal fees unless you win.

Out-of-pocket expenses are paid by the employee. Out-of-pocket expenses are fees charged by the sheriff, the court, the court reporters, and other incidental expenses of the case. If you cannot afford to pay these expenses as they are incurred, some arrangements can be made with the attorney.

If I am paid a salary, am I still entitled to overtime pay?
Yes, in many cases. How you are paid does not determine whether or not you are exempt from overtime. The nature and details of you job, determine who is exempt and who is not exempt. Many salaried people are entitled to overtime.
Do I get paid for work that I do for my boss at home?
Can my employer pay me comp time instead of overtime pay for my hours over 40?
No, comp time is illegal in the private sector. However, in government employment it is sometimes legal under certain conditions.
Am I supposed to get paid for errands that I do for my employer on the way to and from work?
Yes. Any work that you do that benefits your employer and that he is aware of must be paid for.
When does a workday legally begin for pay purposes?
It begins as soon as you do anything, anywhere, that benefits your employer and that he is aware of. This would include, for example, going out of your way to pick up the mail, or to pick up supplies, or to get tools or a vehicle ready for work.
I get paid in tips. Does that mean I can be paid less than the minimum wage?
Not exactly. The employer can pay you only and 50% of the minimum wage, if you make substantial tips. Also, you must keep all the tips that you earn, and no supervisor or employer can get any part of your tips. Also, the employer must inform you as to how the tips will be treated for purposes of the minimum wage. If the employer does not allow you to keep all the tips that you earn, then the employer loses the right to pay you less than the minimum wage.
I do not get to keep all the tips I earn. Is this legal?
See the answer to the question entitled “I get paid in tips. Does that mean I can be paid below the minimum wage?”
I get paid in tips. Do I get overtime pay if I work over 40 hours?
This answer is a little complicated and depends greatly upon the state in which the work is done. In Maine, restaurants and other eating establishments are exempt from paying overtime pay. However, other tipped employees (other than employees of restaurants) are entitled to overtime pay from their employer for all hours over 40. An employer should pay tipped employees over $7.00 per hour for each hour they work over 40. And the employees are entitled to this pay in addition to any tips that they earn. In other States the figures will be different. And, in other states there may be no exemption from overtime for restaurant workers as there is in Maine.
Some of my pay comes in the form of a bonus. Does this affect my pay in any way?
The bonus you get, whether it is weekly, monthly, or yearly, is something you have earned. If the employer promised it to you ahead of time, usually to encourage you to work harder, then it is pay just like any other pay. Therefore, your time and a half rate of pay should be higher than if you did not get a bonus. There is a simple way to figure out how much more overtime pay you should get if you are paid a bonus.
Are all workers covered by minimum wage and overtime?
No. See the list of exceptions and exemptions on this web site. Remember, if an employer is exempt under the federal law from minimum wage or overtime pay, the employer is not necessarily exempt under the state law. An employer must be exempt under both state and federal wage laws, or overtime must be paid.
Do I get paid for traveling?
Yes, if while you are traveling you are doing something useful for the employer, such as carrying tools or moving vehicles. No, if you are just commuting to work from your home, and doing nothing for your employer on the way.
Sometimes I am allowed to sleep on the job. Should I be paid while I am asleep?
If your shift lasts 24 hours or less and if you are required to be where you are when you are asleep, yes you should be paid. There are some exceptions to this, but very few. If however, your shift lasts more than 24 hours, you do not have to be paid for eight hours overnight. But, you do have to be paid for the entire eight hours if you are not able to get a least five hours of sleep in a night.
I do not really have a full lunch break, but my employer subtracts one half hour each day for lunch.
The employer cannot subtract any time from your time worked for lunch unless you really have the time to yourself to eat and enjoy your lunch. If you are eating at a desk, or eating while you are working, you must be paid.

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