Even with the lowest unemployment rate in the last fifty years, there are still some applicants out there that would be willing to waive their wage and hour rights in order to secure a position with a company. In this article, a Tampa wage and hour attorney will discuss this concept and cover certain scenarios in which an employee and an employer make a private agreement that impacts wage and hour laws. Remember, for any of your wage and hour legal questions, our Tampa wage and hour attorneys are standing by.
Waiving Wage and Hour Rights
As we discussed above, some employees or applicants are willing to go above and beyond to secure or retain a position, including agreeing to waive their wage and hour rights. Here are some common ways that an employee and employer could agree to this:
They Are Willing to Work For Less Than Minimum Wage
The Private Agreement: There are many ways this type of agreement can happen. In some cases, an employee may agree to a day rate for their services that ends up equalling less than minimum wage. In other agreements, an employee may agree to forfeit their hourly rate for tipped compensation or sales commission. These types of agreements are common in either the service industry or any type of sales positions.
The Answer: There are some circumstances in which employees may earn less than the standard minimum wage. For example, in Florida, tipped employees can earn as little as $5.23 an hour; however, it’s the employer’s responsibility to ensure that the tipped employee earns the regular minimum wage rate of $8.05 per hour with tipped compensation. The same concept also applies to sales jobs. In other words, it’s illegal for any employee to earn less than minimum wage.
They Are Willing to Work Off the Clock
The Private Agreement: An applicant may be so eager to secure a position that they are willing to perform work before and after their shift time. For example, an employee in the service industry may agree to show up early to prep a kitchen for the day or stay late to clean after their shift hours. At the end of the week, a restaurant employee may have worked 10 or more extra hours off the clock “as part of their job.”
The Answer: An employee should be compensated any time they perform work related tasks. Even if an employee agrees to show up early or stay past their scheduled hours, they should be paid for every hour they are working. A workday begins when the employee shows up and begins working and ends when they leave the place of business.
They Are Willing to Work Over 40 Hours With Unpaid Overtime
The Private Agreement: In a similar scenario as the above one, some employees are willing to waive their right to overtime pay in order to secure a position. For example, an employee may work in a position that requires them to work 50 or 60 hours a week. The employer pays them for every hour they worked; however, the employer and employee agree to waive overtime pay.
The Answer: It’s actually common for an employer to require their employees to work over the standard 40-hour workweek. For any employee 18 or older, it’s perfectly legal to require workers to work over 40 hours each week; however, with few exceptions, employees should be compensated one-and-one-half times their standard hourly rate. If you are owed additional compensation, consult a Tampa overtime lawyer.
They Are Willing to Work Through Lunch
The Private Agreement: Some positions require a person to be onsite during their lunch hours. For example, an employer may require their employees to answer the phone at their desk during their lunch break or run several office errands when they are out on their break. The end result is that the employee actually doesn’t have a break.
The Answer: Unless under the age of 18, many employees will be surprised to learn that their employer isn’t required to provide them with a lunch break. In fact, there are no federal laws related to requiring adult workers to have breaks. With that being said, any work tasks that are required to be performed during a “lunch break” is considered compensable time. So if an employee is required to be in the office 45 hours a week with five of those hours answering the phone while eating at their desk, they should be paid for those five hours each week.
They Are Willing to Travel Off the Clock
The Private Agreement: Some positions require an employee to travel a significant amount of time away from their workplace. An employer could tell their employees that the time they spend driving in their car is not work time and refuse to compensate them for their time traveling.
The Answer: An employer doesn’t have to pay an employee for the time they spend traveling to and from work each day; however, any time spent traveling from one destination to another to perform a work-related task is time that should be compensated. For example, any person that travels often for their sales position to visit clients should be paid for the time they spend in the car. If an employee is required to use their own vehicle for work travel, they should also track mileage and submit it to their employer.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.