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Misclassification as exempt under the FLSA may result in a failure to pay overtime

On Behalf of | Oct 23, 2020 | Wage & Hour Laws

The Fair Labor Standards Act covers employers making a minimum of $500,000 in revenue that are engaged in interstate commerce, providing standards regarding worker pay. While most employers are covered, there are certain jobs that are excluded from overtime pay. Sometimes an employer, intentionally or in good faith, may misclassify an employee as exempt and fail to pay them the overtime they are entitled to, constituting a wage and hour violation.

Exempt vs. non-exempt employees

In order for an employee to be eligible for overtime under the FLSA, they must be classified as non-exempt. Determining whether an employee is exempt or non-exempt depends on:

  • The amount of money they make – Non-exempt employees typically earn less than $455 per week or $23,600 per year.
  • Whether they are paid hourly or on a salaried basis – If an employee is guaranteed a certain amount of money every week, he or she is generally considered to be salaried. While permissible reductions to the base pay will not change their exempt status, an impermissible reduction to their salary can make them nonexempt.
  • The type of work they do – Exempt job duties typically fall under one or more categories, including executive, professional, and/or administrative. Each category has its own criteria for what constitutes an exempt duty, but generally, if the worker is managing other employees, doing work that requires a specialized skill or education, or office work directly involved with the employer’s business, they will likely be classified as exempt. Employees that do not fit in these categories, such as manual laborers and restaurant wait staff, will typically be considered non-exempt.

Employees classified as non-exempt are typically entitled to overtime wages at a rate of one- and one-half times their regular rate of pay for any hours worked over 40 per workweek. If you have been misclassified as exempt or not been paid the overtime you were entitled to by your employer, an employment attorney can assist with your case.


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