You got the call. Someone wants to hire you away from your job. The offer sounds great, and you take it. But you’ve learned the grass isn’t always greener on the other side. You are working longer hours and being denied overtime pay. It’s not just unfair, it is often illegal.

What Does It Mean to Be Poached?

When a company wants to hire someone who is employed, it, or a recruiter, may contact that person directly. The company reaches out to you, even though you were not looking for a new job. They talk to you about leaving your current employer and taking a new job with them. If you’re interested enough, you may take them up on their offer.

Poaching is very common in fields like technology, finance, health care, and law. Companies do it because they want skilled and experienced workers, and they’re having difficulty filling these openings. It is legal in most cases.

Taking this job may or may not be legal if you’ve signed a non-compete agreement and your potential employer is covered by it. The devil is in the details of the agreement. If this is your situation, contact us so we can discuss the matter, and you can see where you stand.

What Are the Pros and Cons of Being Poached?

Being recruited by another company can bring real benefits, including the following:

• A higher salary and better benefits
• A chance to grow in your career
• The ability to do something new
• Leaving an organization or management that you feel isn’t right for you or is headed in the wrong direction
• It can feel good to know another company values your experience and skills

But changing jobs also comes with risks:

• You lose the seniority and trust you built at your old job
• You may lose retirement savings or stock options that had not vested
• Benefits like health insurance may not start right away or may not be offered at all
• The new job may not turn out to be what was promised, or you were so desperate to leave the old job that you ignored warning signs of trouble ahead

Taking a new job is a gamble. How big a gamble depends on your current work and compensation, along with the potential upsides and downsides of the new position and employer.

What Is Overtime Pay?

Overtime pay is money you earn when you work more than 40 hours in one week. You may be entitled to one and a half times your normal pay rate for those extra hours, depending on your status, applicable law, and union contract, if there is one. For example, if you earn $20 an hour, overtime pay should be $30 an hour.

This rule comes from the federal Fair Labor Standards Act, also known as the FLSA. New Jersey law also follows this formula.

Who Gets Overtime Pay?

Not everyone qualifies. Workers are generally split into two groups under the law, which are the following:

• “Nonexempt” or hourly workers must be paid overtime when they work more than 40 hours a week
• “Exempt” or salaried workers do not get overtime pay, no matter how many hours they work, if their status meets all the legal requirements

Simply having the “exempt” label, a certain job title, or being paid a salary isn’t enough to disqualify you for overtime pay. There are pay requirements. You must be paid a set salary, not an hourly wage, and earn at least $684 per week, or $35,568 annually.

There are also duties tests, including the following:

• Executive: Managers who direct the business (or a department) as their primary duty, and are responsible for at least two other employees with hiring/firing authority
• Administrative: Office or non-manual workers whose primary duties include independent judgment on significant business matters
• Professional: These jobs require advanced knowledge in a field of science or learning (usually requiring a specialized degree), or they’re creative professionals
• Other categories: Certain outside salespeople, computer-related employees, and highly compensated employees

All of the qualifications must be met to deny a salaried person overtime pay. For example, in an administrative role, if the job doesn’t allow for truly independent judgment and/or the matters being worked on are insignificant, even if the person is paid a salary, they should be paid overtime.

What Are My Legal Options If I Am Denied Overtime?

If you believe your employer is illegally denying you overtime pay, call our office because you have legal rights and options for proceeding.

You may also report your employer to the US Department of Labor’s Wage and Hour Division, which enforces the FLSA, and they can investigate your employer. You may also file a complaint with the New Jersey Department of Labor and Workforce Development. They enforce applicable state law.

Filing a legal action in state or federal court against your employer (or former employer if you left) may be an option. Under the FLSA, a successful case may result in an award of the following:

• The unpaid overtime wages you are owed
• An equal amount in extra damages, called liquidated damages, doubling your recovery
• Your attorneys’ fees and court costs

A successful New Jersey Wage Payment Law and Wage and Hour Law case may also result in an award of attorneys’ fees and costs, but three times the pay you were denied.

Can My Employer Take Actions Against Me If I Object to Being Denied Overtime Pay?

Your employer cannot legally fire or punish you for objecting about denied overtime pay, for filing a complaint with a government agency, or for filing a related lawsuit. This would be considered retaliation, which is against federal and state laws, and gives rise to significant sanctions against the employer.

If your employer retaliates against you, that creates a separate legal claim. Depending on the facts, your overtime pay claim may be unsuccessful, but if there’s enough evidence of retaliation, you may obtain compensation for that.

Has Your Employer Treated You Illegally in Some Way?

If you believe your employer violated your rights because it didn’t pay you overtime wages, or retaliated against you because you brought it up, we will listen to your facts, explain the law, and suggest right and reasonable approaches for relief.

Kingston Law Group provides compassionate counsel and tough advocacy. We are ready to help you, your loved ones, and your friends. Call us at +1-609-683-7400 or contact us online to schedule a near-term initial consultation at a reduced hourly rate. Call or write us today. You’ll be glad you did.