In Wisconsin, employers are required to comply with state and federal laws regarding wages and hours. The federal law is referred to as the Fair Labor Standards Act. The state laws are set forth in Wisconsin Statutes and the Wisconsin Administrative Code.

These laws require employers to pay certain employees, referred to as non-exempt employees, a higher hourly rate of pay for overtime.

Overtime is any time worked in excess of 40 hours during a seven day work week. An employer must pay a non-exempt employee at a rate of pay that is 1 ½ times the employee’s regular rate of pay for any time worked in excess of 40 hours during the work week.

Overtime must be paid to employees who are not exempt from the state and federal laws. The overtime laws do not apply to exempt employees. Whether or not an employee is exempt from overtime, or is not exempt from overtime laws, is not always easy to determine.

There are three general categories of employees who are exempt from payment of overtime: executive employees, administrative employees, and professional employees. There are a number of other miscellaneous categories of employees who are exempt from overtime, including highly compensated employees, computer employees and outside sales employees.

Under the law, there are multiple factor tests used to determine if an employee fits within any of the exemptions to overtime. Generally, the tests look at what duties and responsibilities the employee is actually performing, as well as the time spent on the various duties and responsibilities.

Employers occasionally treat employees who should be paid overtime as exempt from overtime. For example, employers frequently assume that, because an employee is paid a salary rather than an hourly wage, the employee is exempt from overtime. This is not necessarily true. The payment of salary is a factor, but not the only factor, in determining if an employee is exempt from overtime.

Claims for an employers’ failure to pay overtime can be filed with the State of Wisconsin, Equal Rights Division; the EEOC, or in state or federal court. These claims are subject to a statute of limitations.
The statute of limitations for wage and hour claims is either two years or three years, depending on the law and the facts of the situation.

This means that an employee can recover overtime, which was not paid, going back two or three years from the date a claim was filed with the proper agency or court.

The federal and state laws provide a number of different remedies for an employer’s failure to pay overtime. These potential remedies include payment of the overtime rate of pay; interest; a penalty that is 50 or 100 percent of the overtime wages that were not paid, sometimes referred to as liquidated damages; and attorney’s fees and costs incurred in pursuing the claim.

Employees who complain about wage and hour violations or file a wage and hour complaint are protected, by law, from retaliation. For example, if an employee files a claim and is terminated because he or she filed the claim, the employee would have a legal claim for wrongful termination.


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