What can an overworked employee do?

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What can an overworked employee do?

My friend is a caregiver for a disabled man. When he first started he signed a paper that he would not work more than 40 hours. This was signed for a program that the mom of the disabled man are going through. The mom finds people to hire and they go through the program to get hired. Finding other people to do this job has proven hard potential employees will not show up for training or they will not work the job for more than 1 or 2 shifts, so he is the only one doing the job. The hours are 9-11 hours a day. So working every shift every day, he is working way more than 40. They originally told him that he could not carry his hours over to the next week if he works more than 40 hours, however he puts 40 hours on every time sheet. He is sick of the job, but he wants to be paid the money that he has earned over the months of overtime he should be getting. If he just quits, he won’t get his

money. He isn’t sure of the actions he can take without losing his job and not being able to get the money he has earned.

Asked on August 8, 2016 under Employment Labor Law, New Mexico

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Legally, if he is not exempt from overtime--which he presumably is not; for example, ALL hourly staff are non-exempt--he *must* be paid overtime whenever he works 40 hours in a week. That is the law (e.g. the federal Fair Labor Standards Act, or FLSA). So if your friend works 9 - 11 hours for, say, 6 days a week, he on average is working 60 hours per week and must be paid overtime for 20 of them. He can bring a complaint to the state department of labor; he can potentially receive back base pay (e.g. if he was only paid for 40 hours) and overtime for the last two years. The employer may not retaliate againt (fire) him for bringing a wage complaint: that is itself illegal, and can lead to further liability on their part.


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