Under the federal Fair Labor Standards Act (FLSA), employees who work over 40 hours in a workweek must be paid one and one half times their regular rate of pay. Employees must be paid this extra rate for any hours worked over 40 hours. To qualify for overtime pay, an employee must be covered under the law; the law must apply to them. If the FLSA applies to an employee, that employee is a “non-exempt” (not exempt from the FLSA) employee.
The FLSA does not apply to all employees. Under the law, certain categories of workers are generally excluded, or exempted, from the law’s overtime requirements. These workers are referred to as “exempt” employees.
What are Exempt Employees?
Exempt employees are “white collar” employees. Generally, they perform office or non-manual work. In contrast, “blue-collar” employees include manual laborers. These employees also include those people performing repetitive work using their hands. These employees perform tasks requiring energy and physical skill.
- Professional employees paid on a salary or fee basis;
- Executive employees paid on a salary basis;
- Administrative employees paid on a salary or fee basis; and
- Outside sales employees.
What are Professional Employees?
Professional employees are paid on a salary or fee basis. Their job performance requires that they have advanced knowledge in a special field of learning, obtained through specialized study.
Employees whose work is original, or that is artistic and a product of their talent, imagination, and invention, are professional employees. Professional employees use discretion and independent judgment to perform mostly intellectual work.
What are Executive Employees?
Executive employees are paid on a salary basis. Their main work duties consist of managing a business, or a part of a business. These employees usually direct the work of others, and have some influence or authority with respect to hiring and termination decisions.
What are Administrative Employees?
Administrative employees may be paid on a salary or fee basis. Their work relates to the employer’s business operations and policies, or to the employer’s customer’s business operations and policies.
Administrative employees exercise discretion and judgment with respect to matters of importance. These employees assist with the running or servicing of the business, as distinguished from, for example, working on an assembly line, or selling products in retail stores.
What are Outside Sales Employees?
Outside sales employees perform specific sales duties. For an employee to qualify as an outside sales employee, that employee’s primary duty must consist of:
- The making of sales; or
- The obtaining of contracts for services or orders or for the use of facilities for which a client or customer pays a consideration (typically, money).
In addition, to be an outside sales employee, the employee must be regularly and customarily performing work away from the worksite
When are Exempt Employees Entitled to Overtime Pay?
Generally, employers can require exempt employees to put in as much work as is necessary to their job. However, exempt employees must meet a salary threshold to retain their exempt status. They must be paid the equivalent of $684 per week, or $35,568 per year, or more.
If an employer does not pay an exempt employee at least this amount, the employer must either raise the salary of the employee, or reclassify the employee as non-exempt. If an employee is reclassified as non-exempt, that employee is entitled to overtime pay. This overtime pay is referred to as “mandatory overtime pay.”
Can an Employment Agreement Forbid Overtime Payment?
Generally, employers and employers are free to enter into an employment agreement of their choosing. This means they may bargain over issues such as wages, salary, and benefits. An employer and an employee can agree that the employee is forbidden to perform more than 40 hours of work in a workweek.
However, an agreement cannot require performance of an illegal act. This means that an agreement cannot require an employee to forego overtime pay to which they are entitled under the FLSA.
Can I Sue if I Am Not Paid for Mandatory Overtime?
Under the FLSA, employers must keep records of all hours worked by employees. If an employee is not paid for mandatory overtime, that employee can file a civil lawsuit. During the lawsuit, the process of discovery will occur. In this process, the parties exchange case-related documents and answer questions, The court will evaluate the documents. If the employer’s records reveal an employee was not paid for mandatory overtime, the court can order the employer to pay the employee that mandatory overtime.
Do I Need the Help of a Lawyer With Mandatory Overtime Pay Issues?
If you have not been compensated for overtime work, or have not been paid mandatory overtime, you should contact an employment attorney. This attorney can evaluate your case and can represent you at hearings and in court.