Contrary to widespread misunderstanding, the Fair Labor Standards Act (“FLSA”) and parallel state wage and hour laws provide overtime protection to many salaried employees. The FLSA requires time and one-half be paid to all employees for work in excess of forty hours/week unless a specific exemption from this requirement is applicable. Because the laws are considered “socially remedial”, meaning in the best interests of the Nation as a whole, they were passed with the intention to provide remedies to the maximum number of workers possible. Exemptions from overtime are narrowly interpreted, and an employee must fall clearly and unmistakably within the scope of an exemption for it to be lawfully applicable. Overtime eligible is the rule. Exemption is the exception.
A common error made by employers is the designation of an employee by title as a “supervisor” or “manager” (or “assistant manager”), pay them a salary, and consider the worker exempt from overtime, without regard for the duties the worker actually performs. For example, the Executive exemption requires management, with the authority to hire and fire subordinate employees, to be the primary duty of an exempt executive. Many first level supervisors are treated as exempt, even though their duties make them eligible for overtime pay. As space is too limited in this blog to delve into all the legal details, we only highlight that exemptions are often incorrectly applied. An employee’s title, job description, and salary are all insufficient to warrant exemption if the actual work performed does not rise to the level of management necessary, as demonstrated by numerous court decisions on this subject. We find many employees that raise questions are often surprised that they too are eligible to be paid overtime for weekly hours worked in excess of forty.
If you believe you have been misclassified as exempt or were the victim of wage theft in any other way, please contact us at (212) 688-5640 or use the electronic form on this site.