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What to Do When You Are Not Paid Overtime as an Exempt Employee

What is the potential for receiving premium overtime pay as an exempt employee? It helps to know the distinctions regarding exempt versus non-exempt exempt under the Fair Labor Standards Act (FLSA) to understand whether one qualifies for overtime wages. The details can be tricky, but we’ll attempt to clarify the important aspects of when exempt classified, salaried employees may legally qualify for overtime pay.

Can You Receive Pay for Overtime as an Exempt Employee?

The short answer to this question is: maybe. All employees are legally entitled to overtime pay unless they qualify for an exemption under the FLSA and any applicable state wage laws. This means that employers must pay all employees 1.5 times their regular rate of pay unless the employees qualify for the limited overtime pay exemptions. As such, employees may legally qualify for overtime pay even though their employers classify them as salaried and do not pay them overtime.

Salaried employees who perform mainly physical work and do not supervise two or more employees often qualify for overtime. The mere fact that your employer refuses to pay you overtime and pays you a salary fails to determine whether or not you are legally entitled to overtime pay. You should contact an employment lawyer if you have questions about overtime pay as a salaried employee.

How Does FLSA Define “Exempt”?

The FLSA contains two major tests to determine if employees qualify for an exemption and thus are not legally eligible for overtime pay: (1) the employees must be paid a salary, and (2) the job duties must qualify for the exemption. The employer carries the burden to prove both of these tests. The employees do not have to prove that the exemption does not apply.

First, the salary must be at least $35,568 annually (or $684 weekly) in order to qualify for an exemption. The employer must also pay the salary as a set amount per pay period which is not subject to deduction except in limited circumstances. Thus, an employee is not exempt if her salary is less than $35,568 per year or if the employer deducts from her pay for such things as lack of work, etc.

Second, the employee’s job duties must meet an exemption. The most common exemptions are administrative, professional, and executive. These exemptions can be difficult to apply so you should contact an employment attorney if you believe you are misclassified as exempt. Again, you are likely misclassified as exempt if you perform most physical labor and do not actually supervise more than one employee. Jobs that are commonly misclassified include assistant managers, mortgage loan officers, engineers, and other jobs.

What about 1099 contract workers? Contract employees are generally exempt from FLSA if they are actually independent contractors. The independent contractor law is changing so contact us if you believe you are an employee and not an independent contractor. The key is how much the employer controls when and how you perform your work.

The FLSA also considers outside salespeople exempt from overtime provisions. However, if you’re unsure whether that applies to you, please contact Rowdy Meeks Legal Group LLC. Many companies also avoid paying overtime by classifying workers as “inside salespeople.” This often happens illegally, and you may have a case for unpaid wages.

Is Your Job Really Exempt?

With all that in mind, we should beware of any tricks employers might play in order to circumvent the law. Sometimes, they attempt to avoid paying overtime by offering an employee a low salary (below the FLSA standard), only to have them work well over 50 hours per week with no additional compensation. We see this a lot with the “assistant manager” designation.

You don’t want to find yourself in a position where you’re making a meager salary, still performing strenuous labor tasks for longer than a regular work week, and receiving no additional compensation. If this happens, you may have a strong case for unpaid wages against your employer.

Other Issues Facing Salaried Employees and Overtime

We encourage you to read through our previous article about the common issues with salaried employees and overtime pay for more information on the matter. In addition to what we’ve already mentioned, salaried workers may encounter problems with other issues such as:

  • Earning a salary without working a white-collar job.
  • Not receiving their full salary because of illegal deductions.
  • . . . and other job misclassifications, including erroneous contractor status.

Call Rowdy Meeks Legal Group LLC to Learn More About Overtime as an Exempt Employee

Rowdy Meeks Legal Group LLC helps salaried employees determine whether they qualify for overtime premiums. When you don’t know your rights, you’re much more vulnerable to wage manipulation, regardless of the job you perform. That’s why you should check with an employment attorney to see if your employer is violating the wage laws.

If you have any other questions about receiving overtime as an exempt employee, contact Rowdy Meeks Legal Group LLC today for assistance.