What to do about unpaid overtime?

UPDATED: Feb 20, 2012

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What to do about unpaid overtime?

I just found out that my employer has not paid me overtime for the last 4 years because he thinks he is exempt. I have known him most my life and generally trust people so I dug a little more and have found he has also shorted me in some commissions and bonus checks. I have also always filed my taxes online but this year went to an actual firm and they question how I receive a W-2 for hourly pay and monthly bonus but then get a 1099 MISC for commissions. All of my work is done in a retail store with set hours so I am not an independant contractor.

Asked on February 20, 2012 under Employment Labor Law, Minnesota


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

There actually is an exemption from overtime for certain retail store staff. The employee must work in retail sales; must get over half his/her compensation from commissions on sales; and the base rate of pay must be at least 1 1/2 times minimum wage. If these criteria are met, it may be correct that you are not eligible for overtime--though you still should have been paid commissions and bonuses correctly, as per the agreement under  which you were working. Also, I do not believe that an employee should get both a W-2 and a 1099 for the same job (and therefore have taxes treated differently for the same position).

From what you write, there are several questions about how you have been paid. If you have been paid improperly (had to pay your own withholding taxes when the employer should have; not been paid overtime to which you are entitled; been shorted on commissions; etc.) you may be entitled to sue to recover the money you should have received. It would be worth your while to consult with an employment law attorney about your situation in detail. Good luck.

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