What Kind of Jobs are Exempted from Overtime?

*This is a transcript of the Facebook Live video from 3-1-18  Click here to watch the video.

There are a number of statutes and regulations under the Federal Law that decide this. And, it’s interesting when the Fair Labor Standards Act, which is what … Where we get our minimum wage and our overtime laws. When that was enacted, it was back in the 30’s during the Depression. And the American workplace looks a lot different than it does now. And so, a lot of these exemptions were done at the time and reflected different kind of method of work. So, when you try to apply some of these rules to modern workplace, that’s where there’s a lot of gray area and that’s where a lot of people fall through the cracks.

So, just because your company tells you that you’re not entitled to overtime. If your working a lot of hours, and you feel like you’re not being paid appropriately. You should contact someone like me, to look at your situation and see if you are in fact, exempt from overtime because, very, very often I find that workers are working and not being paid appropriately. There’s some big exemptions to overtime, for example, learned professionals like, doctors and lawyers and nurses and accountants and those kinds of folks, can be exempted from overtime if they are performing their profession with a lot of independent judgment. And they are paid a salary of at least, $455 a week. A guaranteed salary. I find frequently, that some of these professionals that I just listed for example, nurses. Are often, paid by the hour. And even though they would qualify for the learned exemption based on their duties and their background. They’re not entitled for the company to take it based on the fact that they’re only paid by the hour.

Then there’s the executive exemption and these are people that have a lot of responsibility for a defined subdivision of a business where they’re supervising and directing more than two employees. And the issue there comes, whether or not they actually are in charge or if they can exercise their own discretion, or if they’re really just taking orders from someone else. A good example might be, I may be called … Particular worker might be called the Office manager or the Store manager or some sort of, manager. But, they’re District manager is really running the store and, every time there’s a decision that has to be made, the manager has to go to the District manager for a decision. That person might not be exempt from overtime and maybe entitled to overtime compensation.

There’s also the administrative exemption. And that’s a more complicated exemption but basically, in all of these that I’m talking about now, you have to be paid a salary. If you’re paid an hourly, an hourly rate, then you are entitled to overtime. But, if you’re paid a salary of more than $455 a week, and you exercise a lot of independent judgment, while working in an office performing a duty that’s not part of the product offering of the company. Then, you may be entitled to overtime compensation. I know that’s a lot of elements. But basically, you have to be … An example I always give is, you might have a bookkeeper who’s working in an office and, if the company is in the business of not providing bookkeeping services. Then, that person may qualify for the exemption if that person exercises a lot of independent judgment. And that’s really what it comes down to, for a lot of these exemptions. Particularly, the executive exemption and the administrative exemption is, is the person really exercising a lot of independent judgment?

And when I’m talking to folks, that’s some of the first things that we talk about in our consultation is, that fact. And, oftentimes folks tell me. “Yeah, that maybe what my title is. Or, that maybe what my job description says but, that’s not what I do. I gotta run everything past some other person who’s higher up in the organizational chart. Who’s actually running things.” Another exemption would be, the computer exemption. And, several years ago particularly, a lot of companies thought as long as you were “working” on a computer, you were entitled to this exemption. But basically, this refers to people who are working in coding, in software development. It’s a very high-end of computer programming. If the worker is applying applications, troubleshooting, working a consumer help desk, that sort of thing. Then they’re probably entitled to overtime. And that’s something that you should consult with an attorney about.

And, there are a number of other exemptions and one thing that is important to remember, is that when the statute was passed. It was passed in Congress and so, it was a compromise. And a lot of different interest groups got exemptions. There’s some farming exemptions and, if you work at a car dealership you may be exempt just by virtue of working at a car dealership. If you drive a truck or involved in the trucking industry, there maybe some exemptions. But all of those, just because you work at a car dealership or for a trucking company or on a farm, doesn’t necessarily, mean that they are entitled not to pay you overtime. Again, if you think you’re working a lot of hours and you’re not being fairly compensated. To me that’s the test, you outta at least look into it and ask a lawyer and a lawyer can tell you whether or not, it’s a clear case or a close case, one way or the other. And then you’ll know for sure what your rights are and you can pursue it that way.

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