Misclassification arises when an employer tries to classify an employee as “exempt” from overtime when, in actuality, the employee should be paid overtime for all their overtime hours worked. Frequently, employers will pay an employee a base salary and expect that employee to work however many hours are required to perform the job. If you are paid a salary and work overtime hours either under state and/or federal law, you may want to inquire as to whether or not you are correctly classified. If not, you could be entitled to recover unpaid overtime wages under the misclassification violation. The following is a list of common exemptions from overtime:
Executive Exemption
To meet this exemption an employee must (1) be compensated on a salary basis at a rate of not less than $455/week, (2) have a primary duty of managing the enterprise where the employee is employed or of a customarily recognized department or subdivision of that company, (3) customarily and regularly direct the work of two or more other employees; and (4) have the authority to hire or fire other employees (or have significant sway in the recommendation of such employment decisions). If you don’t meet each and every one of these minimum criteria, you may be misclassified and owed overtime.
Administrative Exemption
To meet this exemption an employee must (1) be compensated on a salary basis at a rate of not less than $455/week, (2) have a primary duty of performing office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers, and (3) exercise discretion and independent judgment with respect to matters of significance. If you don’t meet each and every one of these minimum criteria, you may be misclassified and owed overtime.
Professional Exemption
To meet this exemption an employee must (1) be compensated on a salary basis at a rate of not less than $455/week, (2) have a primary duty of performing work that requires (a) knowledge of an advanced type in a field of science or learning customarily acquired by lots of schooling (i.e., Doctors, Lawyers) or (b) invention, imagination, originality or talent in a recognized field of artistic or creative endeavor (i.e., writer, graphic artist). If you don’t meet each and every one of these minimum criteria, you may be misclassified and owed overtime.
Computer Exemption
To meet this exemption an employee must (1) be compensated on a salary basis at a rate of not less than $455/week or on an hourly basis of not less than $27.63/hour, (2) have a primary duty of (a) application of systems of analysis techniques and procedures, including consulting with users, to determine hardware, software, or system function specifications, (b) design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; (c) design, documentation, testing, creation, or modification of computer programs related to machine operating systems, or (d) a combination of these duties, the performance of which requires the same level of skills. If you don’t meet each and every one of these minimum criteria, you may be misclassified and owed overtime.
Outside Sales Exemption
To meet this exemption an employee must (1) have a primary duty of (a) making sales (as that term is defined under the law) or (b) obtaining orders or contracts for services or for the use of facilities for which consideration will be paid by the client or the customer and (2) be customarily and regularly engaged away from the employer’s place or places of business in performing the primary duty.
