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Misclassification as Exempt from Overtime

Under the Fair Labor Standards Act, an employer typically must pay overtime and a minimum wage to all non-exempt employees.  It typically does not need to pay overtime to exempt employees.  Sometimes, however, an employer classifies a particular employee as exempt in order to avoid the overtime requirement, but the employee is non-exempt and entitled to overtime.  This is called a "misclassification."

FLSA Exemptions

The Fair Labor Standards Act provides for numerous exemptions.  The most common exemptions are:

To be covered by this exemption, (1) the employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $455 per week; (2) the employee's primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise; (3) the employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and (4) the employee must have the authority to hire or fire other employees, or the employee's suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight. 

To be covered by this exemption, (1) the employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week; (2) the employee's primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and (3) the employee's primary duty must include the exercise of discretion and independent judgment with respect to matters of significance.

To be covered by this exemption, (1) the employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week; (2) the employee's primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment; (3) the advanced knowledge must be in a field of science or learning; and (4) the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. 

To be covered by this exemption, (1) the employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week; and (2) the employee's primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor. 

To be covered by this exemption, (1) the employee's primary duty must be making sales (as defined in the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and (2) the employee must be customarily and regularly engaged away from the employer's place or places of business. 

To be covered by this exemption, (1) the employee must be employed by a retail or service establishment, (2) the employee's regular rate of pay must exceed one and one-half times the applicable minimum wage for every hour worked in a workweek in which overtime hours are worked, and (3) more than half the employee's total earnings in a representative period must consist of commissions.

To be covered by this exemption, (1) the employee must be compensated either on a salary or fee basis at a rate not less than $455 per week or, if compensated on an hourly basis, at a rate not less than $27.63 an hour; (2) the employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the duties described below; (3) the employee's primary duty must consist of: (a)The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications; (b) the design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; (c) the design, documentation, testing, creation or modification of computer programs related to machine operating systems; (d) a combination of the aforementioned duties, the performance of which requires the same level of skills.

To be covered by this exemption, (1) the employee must be employed by a motor carrier or motor private carrier, as defined in 49 U.S.C. Section 13102; (2) a driver, driver's helper, loader, or mechanic whose duties affect the safety of operation of motor vehicles in transportation on public highways in interstate or foreign commerce; and (3) not covered by the small vehicle exception.

There are several additional exemptions.  If your job duties and compensation fall in one of these exemptions, you likely are not entitled to overtime compensation from your employer. However, if your employer has wrongfully classified you as exempt under one of these exemptions and not paid you overtime compensation, you may have a claim for misclassification.  Please contact a Fair Labor Standards Act attorney at The Weiner Law Firm LLC to discuss your rights to overtime compensation.

The Weiner Law Firm LLC

Despite the fact that most employees are at-will employees, they do have rights under federal and state laws that cannot be violated. If you believe your employer has discriminated against you, harassed you, withheld wages that are owed to you, or violated your rights with respect to a background report, please contact us.

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