Not paid overtime in lieu of free employee residence.

UPDATED: Sep 30, 2022

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Not paid overtime in lieu of free employee residence.

I worked for a property management company where i was paid 13.00 and hour and
given a free 1380.00 fair market value apartment and electric paid for. I took
an emergency phone and was on call once every three weeks. Any calls i received
after 5pm i was paid overtime for. After 4 years a new company cam in and
rehired me on the property. They let me keep the apartment, raised my pay to
17.00 an hour but told me i had one of two options…either forgo 100 of all
overtime or be paid overtime and pay the full value of my apartment per month.
I declined the overtime. I was repeatedly told the company is overtime free.
now the lines have started to blur and it feels like i am always expected to
work, even when no emergency calls. Is all this legal, can i forgo my overtime
rights? Thanks F. from NJ

Asked on March 16, 2017 under Employment Labor Law, New Jersey


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

If you are an hourly employee, they MUST pay you overtime and you *cannot* give up your overtime rights--overtime is the law. However, bear the following in mind:
1) When you do the work has no bearing on overtime under the law--weekday, weekend, day, night, etc., it's all the same.
2) An hourly employee earns overtime for any time spent actually *working* past 40 hours in a week--i.e. if you work 42 hours, you get 40 hours base pay and 2 hours overtime. If you work 25 hours, all after 5pm, you get only 25 hours base pay.
3) Being "on call" is not working--you do not have to be paid at all, let alone overtime, simply for being available to work. Only when the call comes in and you actually do work, is that overtime.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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