Most workers are non-exempt and must be paid at least the minimum wage plus overtime compensation for any hours that they work in a workweek over 40. In some cases, employers might try to switch workers from an hourly wage to a salary and claim that they are exempt from overtime pay. When this happens, it is generally in violation of the state and federal wage and hour rules. If your employer has changed your pay from an hourly wage to a salary and is claiming that you are now exempt from the overtime requirements, talk to the attorneys at Swartz Swidler for help.
Non-exempt vs. exempt
Non-exempt workers under the Fair Labor Standards Act must be paid the federal minimum wage. They must also be paid overtime compensation for each hour that they work above 40 in a workweek at a rate of one-and-one-half times their normal hourly rates. Whenever you exceed 40 hours in a week, your employer must pay you the overtime premium in addition to your regular hourly rate for each hour that you worked above 40.
Employees cannot be declared to be exempt from overtime requirements unless they meet specific criteria. They must be paid a minimum required salary of $455 per week and receive the same amount each week regardless of the number of hours that they work. Their job duties must also meet a duty test. Employers are not allowed to claim that an employee is exempt and then dock his or her pay for working less than 40 hours in a week.
It is more difficult for employers to pass the duties test when they try to claim that a worker is exempt. If your employer previously paid you an hourly wage as a non-exempt employee and switched you to a salary and a classification as an exempt employee, it is a red flag if your job duties remain the same. Employers who cannot explain why the classification changed will likely be found to violate the FLSA.
To be classified as exempt, a worker must fall into one of the categories for exemption. The exempt categories include the following:
- Managers who manage at least two employees and perform managerial duties for most of their job duties
- Professionals such as CPAs, lawyers, or doctors
- Administrative professionals who are responsible for programs and projects and can work independently
Even if you are called a manager, you will not be exempt if the bulk of your job is spent doing non-managerial tasks. For example, if you are a shift manager but spend most of your time preparing food, you must be paid overtime compensation.
People who do not fall into one of these categories should not be classified as exempt even if they are paid a salary. They must still receive overtime compensation for any hours that they work above 40 in a workweek. Their employers will need to calculate what their regular hourly rate is based on their salary and pay the workers an overtime premium based on the regular calculated hourly rate. If you believe that you are not being paid fairly, you should talk to human resources or your supervisor about what is happening. Workers cannot waive their rights to receive overtime pay. If you have talked to your supervisor or human resources about the problem, keep detailed records of your hours if nothing changes. Keep the records that you keep at home instead of at your job.
You can then file a wage and hour complaint with the Department of Labor. Filing a complaint is considered to be a protected activity. This means that your employer is forbidden from retaliating against you for filing a complaint. However, employers that try to avoid paying overtime pay to their workers may be likelier to retaliate. If your employer retaliates against you, you can file a separate complaint about retaliation against your employer. Keeping careful records can be valuable for helping you to prevail with your claim.
You are not required to immediately file a claim for back pay. If you are concerned about being fired from your job for complaining, you can look for a new job. After you have started working in your new position, you can file a claim against your former employer as long as you remain within the statute of limitations.
Get help from the employment lawyers at Swartz Swidler
While most employers try to follow the law, including the overtime rules, some are less scrupulous. If you believe that your employer has misclassified you as an exempt employee to get out of paying you the overtime compensation that you deserve, you should talk to the attorneys at Swartz Swidler. Contact us today to schedule a consultation by submitting your information to us with our online contact form.