Are You Entitled to Overtime Pay? Probably

You may have read about the recent Supreme Court case saying pharmaceutical representatives aren’t entitled to overtime because they are outside salespeople. That’s because they fit within one of the narrow exemptions to the Fair Labor Standards Act, which is the law requiring employers to pay overtime to most employees who work over 40 hours per week.

            The truth is, most employees are not exempt. That means you are probably entitled to be paid overtime if you work over 40 hours/week. Just because you’re paid a salary doesn’t mean you aren’t entitled to overtime. Your company can’t offer compensatory time (or “comp time”) instead of paying you. And they can’t average your hours over two or more weeks either.

            If you aren’t exempt from overtime, you are entitled to be paid at time and a half for any week you work over 40 hours.

Here are some of the types of employees who are exempt from overtime if they are white collar workers (blue collar workers and first responders are not exempt):

Executives: If you’re paid a flat salary of at least $455/week, and your primary job duty is managing either the company or a department/subdivision, you may be an exempt executive. You must supervise at least two full-time employees, and have the authority to hire and fire them, or at least make recommendations on hiring and firing that are seriously considered. If you’re the Vice President of Operations supervising 100 employees, you’re probably exempt, but they can call you the Grand Poobah of the Shipping Department and it won’t make you exempt if you don’t actually supervise anyone.

Administrators: If you’re paid a flat salary of at least $455/week, and your primary job duty is office or non-manual work directly related to management or business operations of your company or your company’s customers, you may be an exempt administrator. Your job must involve using discretion and independent judgment regarding matters of significance. For example, a store manager may be exempt, but the cashier is almost certainly not.

Learned Professional: If you’re paid a flat salary of at least $455/week, and your primary job duty is performing work requiring advanced knowledge, predominantly intellectual, and the consistent exercise of discretion and judgment, you might be an exempt learned professional. Your advanced knowledge must be in a field of science or learning and be obtained through a prolonged course of instruction. As an example, lawyers are exempt, but paralegals are not; RNs are exempt but LPNs are not.

Creative Professional: If you’re paid a flat salary of at least $455/week, and your primary job duty is the performance of work requiring invention, imagination, originality or talent in a recognized art or creative field, then you might be an exempt creative professional. As an example, investigative reporters are exempt but reporters who rewrite press releases or who write standard recounts of public information by gathering facts on routine community events are not.

Computer Employee: If you’re paid a flat salary of at least $455/week, if you are paid on an hourly basis, you’re paid at least $27.63 an hour and you’re a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field, you might be an exempt computer employee. Your primary job duty must be applying systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications; or 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; or design, documentation, testing, creation or modification of computer programs related to machine operating systems; or a combination of these.

Outside Sales: If your primary job duty is making sales, obtaining orders or contracts for services or use of facilities and you regularly work away from the company’s place of business, you might be an exempt outside salesperson.

Highly-compensated Employee: If you make $100,000 or more, at least $455/week of which is on a salary basis, and you regularly perform at least one of the duties of an exempt executive, administrative or professional employee, you may be an exempt highly-compensated employee.

Motor Carrier: If you are a driver, driver’s helper, mechanic, or are involved in vehicle safety or a motor vehicle used as transportation for compensation on public highways in interstate or foreign commerce then you may be exempt as a motor carrier and are instead governed under the Motor Carrier Act of 1935 instead.

Seasonal Amusement or Recreational Workers: If you work in an amusement or recreational establishment that doesn’t operate for more than seven months in any calendar year, or if its average receipts for any six months of the year weren’t more than 33 1/3% of its average receipts for the other 6 months of the year, you may be an exempt seasonal amusement or recreational worker.

These are some of the main exemptions. There are lots more, such as live-in domestic workers, car and boat salespeople, and movie theater employees.

Confused? So are most employers, which is why many get it wrong. Fortunately, the Department of Labor has online resources to help. You can start with the handy-dandy Overtime Security Advisor that can guide you through the exemptions and requirements. The Occupational Index is an alphabetic listing of many occupations and whether they are exempt or not.

You can’t legally waive any part of the Fair Labor Standards Act, so if your company policies or your employment contract say otherwise, you still may have the right to overtime. And you almost always have to be paid minimum wage, so if you’re working 100 hours a week and making $455/week, your employer is probably breaking the law.

The consequences of violating the overtime requirements are that your employer might have to pay double the amount owed you, plus attorney’s fees and costs. When in doubt, contact an employee-side employment attorney in your state to find out your rights.