Exempt or non-exempt and overtime pay


One big important question to answer as an employee for a company is whether or not you are an exempt or nonexempt employee for overtime purposes.

This is an important question to ask. The problem your company thinks they have already answered that question for you. When employees are on salary, they also with that salary receive some kind of title that includes the word “manager” or “executive.” No matter what the title is, that title still may not fall under the category of whether or not that employee is exempt from receiving overtime benefits, despite a company saying that they aren’t.

If you have question whether or not you are exempt contact our firm and we can discuss this with you further. If you are non-exempt, which means that you are not exempt from falling under the class of employees that are awarded overtime pay under the Federal Labor Standards Act then you should be receiving time and a half of overtime pay of any work done past 40 hours in the work week.

Every job is different. However there are certain duties in the workplace that involve “executive” functions. The actual job functions of an individual determines whether or not they are exempt or non-exempt. Not the title the company gives them. For example, in the State of Florida, there has been a lawsuit filed against Lowe’s for having numerous individuals with the title “Human Resources Manager” with job duties that do not fall under the executive job duties function. These individuals were working over 50 hours a week and were doing clerical work in processing payroll, benefits, worked in customer service and also in sales.

An executive job duty requires an “advanced skill” that requires consistent exercise of judgment and decision. Example of executive job duties include the following:

Exempt executive 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 assignments).

Supervision means what it implies. The supervision must be a regular part of the employee's job, and must be of other employees. Supervision of non-employees does not meet the standard. The "two employees" requirement may be met by supervising two full-time employees or the equivalent number of part-time employees. (Two half-time employees equal one full-time employee.)

"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.

As such an individual who is just a supervisor is not sufficient. A supervisor receives instruction and training from higher-up and typically clears the hiring or has nothing to do with the hiring and the termination of employees. Also, supervisor’s don’t typically deal with the budget and expenditures. Running the till and ensuring that the sales meet the amount in the till is not sufficient for budget purposes. So typically, in most restaurant chains, many restaurant managers don’t have executive powers. This is more prominent when the company is a corporation instead of a franchise.

Overtime week spillover

Also, one issue that also comes up in regards to overtime is companies that have individuals work over 40 + hours in one week and then give them the next week off. So for example an employee works five days and 80 hours for that week, a lot of companies downplay it as the two weeks being fused together. That is a major no-no and is illegal under the Fair Labor Standards Act. That determination is to be made within the work week, not within a pay period since many companies have a pay period every two weeks.

If you feel like you’re not receiving overtime due to a faulty job description or that you are working more hours than you should a week without compensation, feel free to contact our firm and we can work on recovery what is legally yours. The Utah Labor Commission has a wage division if the limit is below $10,000 of wages owed which we can help you with through the process. If the wages are more than that, we can also help you navigate the legal system to ensure you receive the wages you are owed.

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