COMMON OVERTIME VIOLATIONS: MISCLASSIFICATION
Aug 04, 2016 
By Peter Friedmann Generally, the Fair Labor Standards Act (FLSA) says that an employee who works over 40 hours in a workweek is entitled to overtime pay for all hours worked over 40 hours. Typically, overtime compensation under the FLSA is to be paid at time and one-half of the employee’s hourly rate. If the employee is not paid overtime pay for all hours worked over 40 hours in a workweek, he or she may be entitled to recover that overtime pay, along with liquidated damages (doubling the amount owed to the employee) and attorney fees.
The Fair Labor Standards Act provides protection for non-exempt employees who do not receive the correct amount of overtime pay. However, there are several exemptions to the FLSA. Exemptions apply to those people who are NOT protected by the overtime provisions of the FLSA and are therefore NOT entitled to overtime pay for all hours worked over 40 hours in a workweek. For example, professional employees are exempt from the FLSA are are not entitled to overtime pay. Other examples are administrative employees and certain computer employees. For information on other exemptions, visit the Department of Labor.
The FLSA is complex and confusing for employers and employees alike. Because of this, employers often misclassify employees as “exempt” when they truly are not. Employers also classify employees as independent contractors when they are actually non-exempt employees. Misclassification results in denial of overtime pay.
What is misclassification?
- If you are “misclassified” as an exempt employee or an independent contractor, you may be entitled to a significant amount of overtime pay.
- Employees who are classified as “non-exempt” pursuant to the Fair Labor Standards Act are entitled to overtime pay for all hours worked over 40 hours per workweek.
- Employees who are “exempt” are NOT entitled to overtime pay. Independent contractors, who are not employees, are not entitled to overtime pay because they are not protected by the FLSA. The FLSA only protects non-exempt employees of an organization.
- Therefore, if you are “misclassified” as an exempt (usually salaried) employee or an independent contractor, but are actually a non-exempt employee entitled to overtime pay, our Columbus, Ohio overtime lawyers can help you.
Your job title does not dictate whether you are entitled to overtime pay. This is a common mistake employers make so it is important for you, the employee, to really pay attention to your job duties, not your job title. Your job duties dictate whether you should be paid overtime.
What if I am paid a salary and not on an hourly basis?
- This is a very common mistake employers make as well. Just because you are paid a salary, it does not mean you are being paid correctly. You may still be misclassified.
- In some situations, being paid a salary can mean you are not entitled to overtime. For instance, professionals (doctors, attorneys, etc) usually make a salary and are exempt from overtime. Certain executives who make over a certain salary are exempt from overtime. However, your job duties determine whether you are exempt from overtime, not solely your job title or the fact that you are paid a salary.
- If you have questions about whether your job duties classy you as an exempt employee, contact one of our Ohio overtime pay lawyers for help.
Bottom line
Take a good look at the job duties you are performing. If you think you may be entitled to overtime pay, contact us and we can help.
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