How to Determine If You Are Really Exempt From the Law Requiring Overtime Pay

Even if You Are Salaried, You Could Still Be Entitled to Overtime
Exempt employees are not entitled to overtime pay.  Hourly workers (except teachers, lawyers, and doctors) are “non-exempt” and, therefore, entitled to overtime pay.  Even if you are a paid a salary, however, you may still be entitled to overtime pay.
Exempt employees are those employees who:

  • Receive a salary of at least $455 per week, and
  • Perform the duties of an exempt employee.

Are You Really Salaried?

  • Being salaried means you get paid the same amount for each pay period, even if you only worked 35, 25, or even 10 hours.
  • The salary has to be a guaranteed amount. If your employer can reduce your pay based on the quality or quantity of your work, or because you missed work in other situations, then the employer has destroyed your status as being salaried. Be sure to check your employer’s employment policies — and your pay stubs — for possible reductions.
  • Remember: it does not matter if your employment contract or pay stub states that you are a “salaried” worker. The facts of your work situation are the determining factor.

What Are the Duties of an Exempt Employee?

There are three main categories of exempt job duties: professional, executive, and administrative. Labels or titles do not matter. If your job duties fall into any of these three categories, you may be an exempt employee.

1. Administrative Job Duties
Exempt administrative job duties are the most difficult to classify.  Even if you perform administrative tasks, or your decisions could result in financial loss to the company, you may be nonexempt.

  • Administrative workers are exempt when their primary duties are:
  • Performing non-manual or office work directly related to the management or general business operations of the employer or its customers; and
  • Exercising independent judgment and discretion on important matters.
  • Some examples of administrative duties are duties related to functional areas of the company’s operations, including tax, finance, accounting, budgeting, auditing, insurance, quality control, purchasing, procurement, advertising, marketing, research, safety and health, human resources, public relations, government relations, computer networks, the Internet and database administration, and legal and regulatory compliance.
  • Exempt administrative employees do not include those employees who produce or sell the company’s “product.” You may still be considered administrative if your job is to be an advisor or consultant to customers on administrative matters.
  • Performing administrative duties is not enough. To be exempt duties, the duties must be performed with a high level of judgment and discretion, including dealing with overall company policies or operations, being able to define or deviate from policies, and having authority to commit the company in significant financial matters.

Contact us to see if you were misclassified as an exempt administrative employee.

2. Executive Job Duties
Don’t be misled.  Even if you have a fancy job title, you are called a “manager” or “assistant manager” or you are considered “the boss,” you may still be nonexempt and qualify for overtime.

  • Exempt executives are those employees who:
  • Have authority to make, or whose recommendations carry special weight in making, hiring, firing, or job status decisions;
  • Regularly supervise two or more full-time employees (or the equivalent in part-time employees); and
  • Manage or are in charge of an organizational unit or shift when on duty.

Contact us to see if you have been misclassified as an exempt executive employee.

3. Professional Job Duties
Even if you have a specialized degree or credential, you have to actually practice in that profession to be considered exempt as a professional.  For example, computer professionals working in tech support or installation, or CPAs who only do bookkeeping, are not performing exempt duties, and are likely entitled to overtime pay.

  • Exempt professionals generally include:
  • Professional working in most of the traditionally recognized “learned professions”: lawyers, doctors, teachers, accountants, and engineers.
  • Generally, those professionals who apply judgment and discretion in their work after acquiring specialized training, education, or credentials.
  • Certain computer-related jobs, including programmers, systems analysts, and systems engineers.
  • Contact us to see if you have been misclassified as an exempt professional employee.

If you have questions about the FLSA and whether you have been paid correctly, contact the lawyers [link to bios] at Spencer Scott pllc for a free consultation and evaluation of your personal employment law claims.