On many occasions, employees come to me who are working dozens of hours for their employers, but are not getting paid overtime.  I ask them why and the response is , I’m salaried or I’m exempt.  However, you should be aware that just because your employer calls you salaried or exempt does not necessarily make it so as a matter of federal law.  I mean, if your employer calls an apple an orange, it does not make it so, right?

In many instances, employers will call an employee exempt and pay them a salary merely to avoid having to pay their employees overtime.  Getting your employee to work for as many hours as possible for no additional compensation makes good business sense, right?  But its not fair to employees.

So the question for you to determine and ask the U.S. Department of Labor or an employment law attorney is whether I am really an exempt salaried employe or not.  This is not a simple question and the body of Federal law that governs this area,  the Fair Labor Standards Act or FLSA, is complex.

On of the areas that an employer is entitled to pay an employee a salary and call them exempt is if they are in a management or executive type of position.  There are a number of guidelines issued under the Fair Labor Standards Act which determine whether or not you are really a manager who should not get overtime.  I have had many clients where they were called “assistant manager” by their employer to avoid being paid overtime, but according to law should have been paid hourly with overtime.

With few exceptions, to be exempt an employee must (a) be paid at least $23,600 per year ($455 per week), and (b) be paid on a salary basis, and also (c) perform exempt job duties. These requirements are outlined in the FLSA Regulations (promulgated by the U.S. Department of Labor). Most employees must meet all three “tests” to be exempt.

An employee who meets the salary level tests and also the salary basis tests is exempt only if s/he also performs exempt job duties. These FLSA exemptions are limited to employees who perform relatively high-level work. Whether the duties of a particular job qualify as exempt depends on what they are. Job titles or position descriptions are of limited usefulness in this determination. (A secretary is still a secretary even if s/he is called an “administrative assistant,” and the chief executive officer is still the CEO even if s/he is called a janitor.) It is the actual job tasks that must be evaluated, along with how the particular job tasks “fit” into the employer’s overall operations.

There are three typical categories of exempt job duties, today I am just going to discuss executive or management level job duties.

Job duties are exempt executive job duties if the employee

  1. regularly supervises two or more other employees, and also
  2. has management as the primary duty of the position, and also,
  3. has some genuine input into the job status of other employees (such as hiring, firing, promotions, or assignment of job tasks)

“Mere supervision” is not sufficient. In addition, the supervisory employee must have “management” as the “primary duty” of the job. The FLSA Regulations contain a list of typical management duties. These include (in addition to supervision):

  • interviewing, selecting, and training employees;
  • setting rates of pay and hours of work;
  • maintaining production or sales records (beyond the merely clerical);
  • appraising productivity; handling employee grievances or complaints, or disciplining employees;
  • determining work techniques;
  • planning the work;
  • apportioning work among employees;
  • determining the types of equipment to be used in performing work, or materials needed;
  • planning budgets for work;
  • monitoring work for legal or regulatory compliance;
  • providing for safety and security of the workplace.

Determining whether an employee has management as the primary duty of the position requires a case-by-case evaluation.   This is why if you have any doubts, you should consult with the U.S. Department of Labor or with an employment law attorney.

Will try to cover over the next couple of days some of the other FLSA exemptions.  A listing of many other exemptions contained in the FLSA are on the U.S. Department of Labor web site at http://www.dol.gov/elaws/esa/flsa/screen75.asp.

Don’t let your employer take advantage of you…..get the overtime you deserve.

Share
  • http://topsy.com/trackback?utm_source=pingback&utm_campaign=L1&url=http://takethisjobnshoveitblog.com/%3Fp=132 Tweets that mention Should I Be Getting Paid Overtime as a Salaried Employee? | Take this Job N Shove It — Topsy.com

    [...] This post was mentioned on Twitter by Scott Behren. Scott Behren said: Should I Be Getting Paid Overtime as a Salaried Employee? http://bit.ly/9m1yz5 via @AddToAny [...]

  • http://www.escortopclass.com Tifany Leitner

    I’ll be back again, thanks for the info.

  • http://www.pharmacytechnicianblog.com/ pharmacy tech

    nice post. thanks.

  • http://www.outsourceable.com/type/ASP/ ASP Projects

    I would like to say “wow” what a inspiring post. This is really great. Keep doing what you’re doing!!

  • http://p1-g.com/ Panda Security Coupon

    hello there, i just found your web portal listed on bing, and i would like to tell that you write pretty good via your site. i am actually impressed by the way that you write, and the subject is superb. in any case, i would also like to know whether you would like to exchange links with my web portal? i will be to the great extent than happy to reciprocate and drop your link on in the link exchange area. looking for your reply, thanks and enjoy your day!

  • http://www.behrenlaw.com admin

    Of course, let me know what you propose.

  • http://www.pharmacytechnicianblog.com/ pharmacy technician

    My cousin recommended this blog and she was totally right keep up the fantastic work!

  • Avasseobtaite

    Just want to say what a great blog you got here!
    I’ve been around for quite a lot of time, but finally decided to show my appreciation of your work!

    Thumbs up, and keep it going!

    Cheers
    Christian, iwspo.net

  • http://www.ultrasoundtechnicianblog.com/ ultrasound technician

    Terrific work! This is the type of information that should be shared around the web. Shame on the search engines for not positioning this post higher!

  • http://www.bestwindsurfingcenter.com windsurfers

    Intimately, the post is in reality the freshest topic on this registry related issue. I concur with your conclusions and will eagerly look forward to your forthcoming updates. Saying thanks will not just be enough, for the wonderful clarity in your writing. I will immediately grab your rss feed to stay abreast of any updates.

  • http://commentarmy.com blog comment service

    Awesome post, I’m a huge believer in commenting on blogs and forums to assist the blog creators know that  they have created something of worth to the cyberspace!

  • http://www.docresume.com resume covering letter

    Pretty good post. I just stumbled upon your blog and wanted to say that I have really enjoyed reading your blog posts. Any way I’ll be subscribing to your feed and I hope you post again soon.

  • http://www.bestdishwasherreview.com/ drawer dishwasher

    How-do-you-do, just needed you to know I have added your site to my Google bookmarks because of your extraordinary blog layout. But seriously, I think your site has one of the freshest theme I’ve came across. It really helps make reading your blog a lot easier.

  • http://www.weedsseason6.com/weeds-season-6-episode-1-s06e01/ weeds season 6 episode 1

    Intimately, the post is in reality the freshest topic on this registry related issue. I concur with your conclusions and will eagerly look forward to your forthcoming updates. Saying thanks will not just be enough, for the wonderful clarity in your writing. I will immediately grab your rss feed to stay abreast of any updates.

  • http://submitsamurai.com forum profile submission service

    This post was very nicely written, and it also contains a lot of useful facts. I appreciated your professional way of writing this post. Thanks, you have made it very easy for me to understand.

  • http://www.digitalsportsphotographys.com Digital Sports Photography

    Recently, I didn’t give so much thought to writing comments on blog entries and have left comments even less. Checking out your informative page, will probably encourage me to do this more regularly.

  • http://digital-photography-classes.com/ Digital Photography Class

    Great article, well written….excellent stuff…cool blog!!! Keep up the good work.

  • http://photographystudioequipments.com Photography Studio Equipment

    This is an extraordinary blog….from where do you get your content? I`m thinking to start one of my own.

  • http://www.photographystudioequipments.com Photographic Studio Equipment

    This is why I like staying in touch with my best friend…google. Is because of it I find quality blogs with the info that I need. Thanx for sharing these info with us. Keep up the good work…

  • http://www.1insurancecenter.com horace mann insurance

    The blog was absolutely fantastic! Lots of great information and inspiration, both of which we all need!

  • http://www.bestantiagingcenter.com anti aging face creams

    Heard about this site from my friend. He pointed me here and told me I’d find what I need. He was right! I got all the questions I had, answered. Didn’t even take long to find it. Love the fact that you made it so easy for people like me.

  • http://www.besthybridcarcenter.com Hybrid Car Tax Credit

    Pretty good post. I just stumbled upon your blog and wanted to say that I have really enjoyed reading your blog posts. Any way I’ll be subscribing to your feed and I hope you post again soon.

  • http://www.besthybridcarcenter.com Hybrid Car Batteries

    Yes you learn more while you share your knowledge with others. . . . . .

  • http://www.nursingonlineschool.info Nursing School Online

    Sweet! Keep it up!

  • http://www.wzpd.cn cover letter format

    Good points. Bookmarking to check back for follow-ups later.

  • http://seolinkblast.com/services/edu-links/ Joe Guffey

    Blog reading is my favorite past time. I am curious though do you enjoy writing them as much as I enjoy reading them? I have become a subscriber so I will keep updated now.

blog comments powered by Disqus
Search
Categories
Links: