What is unpaid overtime?

Overtime pay is additional compensation for working in excess of 40 hours per week. Usually, overtime pay is one and a half times your hourly rate for each hour worked 40 hours per week.

What are unpaid wages?

Unpaid wages are wages that are earned by an employee, but for some reason, are not paid by the employer. Unpaid wages can be a portion of your pay that has been incorrectly withheld. Unpaid wages can also be your final paycheck from your employer that has been wrongfully withheld.

Who is entitled to overtime pay under the FLSA?

Just about everyone, with a few narrow exceptions. Every employee covered by the FLSA who is not "exempt" must be paid time and a half for all hours worked over 40 in each week. It does not depend on HOW you are compensated, and includes employees paid hourly, by salary, commission, piece work, day rates, tips, and any other method of payment. Many employers tell their employees they are not entitled to overtime because of HOW they are paid (i.e. a salary, or "by the job", by the day, etc.) this is FALSE!

What if I agreed to work overtime but not be paid for it?

It doesn't matter. No agreement that limits your right to overtime can be enforced.

What if I have no written records or proof of the hours I worked?

It is not necessary that you have any detailed records. It is your word under oath that is essential. The employer will need detailed records and documents to try and disprove your overtime claim.

I'm not paid hourly, I'm paid a weekly salary. My boss tells me that I am not entitled to overtime. Is he correct?

The fact that you are paid a weekly salary does not make you exempt under the FLSA. Your employer cannot pay you a weekly salary simply to avoid paying you overtime. Assuming that you are not otherwise exempt under the FLSA, your boss must convert your weekly pay to an hourly rate and pay you time and a half for all hours worked in excess of 40 hours. This applies to monthly and semimonthly salaries as well, and also applies to commissioned employees, day rates, and piece rates.

I make $10.00 per hour and work 60 hours every week. My boss pays me $600.00. Am I entitled to overtime?

Assuming that you are not otherwise exempt under the FLSA, your boss has short changed you $100.00 for every week that you worked 60 hours. Here is the math: 40 hours @ $10/hr. equals $400.00, and 20 hours @ $15/hr. equals $300.00 (time and a half is 1.5 times the hourly rate ($10/hr) or $15. You should have been paid $700.00. Your boss owes you $100.00. Because your employer did not pay you the proper overtime when due, he owes you TWICE the amount (additional "liquidated damages" in addition to the overtime owed).

I work in a factory and build tables. I get paid by the table. I get $100.00 for each table that I build. I work 10 hours per day, five days per week. In my regular work week, I build 4 tables? Am I entitled to overtime?

Assuming that you are not otherwise exempt under the FLSA, yes, you should receive overtime pay. First, you must convert your "piece work" rate to an hourly rate. In your case, you earn $400.00 for 50 hours of work, or $8.00 per hour. You should be paid 1.5 times your regular hourly rate for the 10 hours that you worked in excess of 40. Under this analysis, since you were already "paid" the $8.00 per hour for the extra 10 hours, your boss now only owes you 0.5 times your regular rate ($4/hr). Your boss owes you an additional $40.00 in this case.

Am I exempt because my employer calls me exempt?

No, it makes no difference if your employer calls you exempt or non-exempt. It also makes no difference if your employer gives you a title such as "manager" or "department head," making it appear as if you should not be paid overtime. For example, some employers will call workers "assistant managers" to avoid paying overtime when those employees are actually regular line workers who are not exempt and should be paid overtime. What matters is what you do, not what you are called.

Should I file a claim against my current employer, or wait until after I've left?

You should exercise your right to overtime and file as soon as possible. Although you can go back two years in most cases, it is best to file as soon as possible so that time records and witnesses are readily available.

If I file a claim against my current boss, can I be fired?

No, you cannot be fired for filing a claim for overtime against your employer. Retaliation is illegal and substantial remedies exist if this happens to you. Our firm also handles retaliation claims under the FLSA.

What should I do if I suspect that I am entitled to unpaid overtime pay?

Call an attorney and seek legal advice. The law as it applies to your situation may be confusing to you. You should get an opinion from an attorney who is knowledgeable about the issues in your case. All of the facts surrounding your employment need to be examined. There is no charge for an initial consultation with our law firm in overtime and unpaid wage cases.

What if I can't afford an attorney?

We handle overtime and unpaid wage cases on contingency fee and cost basis. Basically, that means that our fee is contingent on a recovery from the employer. If successful, your employer must pay the attorney fee and costs, in addition to the overtime and liquidated damages penalties. If we do not recover you owe nothing.

How much money will I have to pay up front in order for you to take my case?

Nothing, zero, nada. All costs for overtime and unpaid wage cases are advanced by our firm, and all fees are contingent upon recovering them from your employer.

What am I entitled to receive if I file suit and win?

You are entitled to the overtime wages that you should have been paid, interest and attorney's fees. The award of "liquidated damages" is an additional amount of equal to the amount of overtime that you should have received. For example, if the Court determines that you are owed $2,500.00 in unpaid overtime, then you may receive an additional $2,500.00 as liquidated damages, making a total award of $5,000.00.

How far can we go back? Five years ago I worked for this company that required me to work 60 hours per week without overtime pay, can I a file a claim for that?

No, generally speaking, you can go back two years from the date that you file suit and recover unpaid overtime for that two (2) year period. If it can be shown that the employer willfully violated the FLSA, then you can go back three (3) years.

Assuming that I have a valid claim, how long does it take to get my money?

If the employer desires to settle the case without going to court, it could take as little as a few weeks. Otherwise, if legal action is necessary it could take between a few months to several months.

What if I don't know how much is owed to me, can I get some help calculating my damages?

Yes. We are very experienced at calculating damages and can do this very quickly for you if you provide us the information.

My boss told me that he doesn't have to pay me overtime because I am an "independent contractor." Is he correct?

Maybe. However, some independent contractors are considered employees for the purposes of overtime. It depends on other factors that we will need to review before a firm answer can be given.

What if I know my job was exempt from overtime, could I still have a claim?

Yes. You may still have a good overtime claim. For example, you may be performing "non exempt" job duties more than 50% of your work time, or your employer may have "docked" you for time off. The exempt status can be lost.

My boss tells me that since I work 30 hours one week and 50 hours the next week, that I average 40 hours per week and am not entitled to overtime. Is that correct?

No, a single workweek is the standard. The averaging of workweeks is expressly prohibited by law. You are entitled to overtime compensation for week two (the 50 hour work week), assuming that you are not otherwise exempt under the FLSA.

How much is this going to cost me?

At the PANTAS LAW FIRM it costs you nothing, unless there is a recovery. The firm handles these types of cases on a “contingency fee and cost” basis. We will seek both fees and costs FROM THE EMPLOYER. If we lose, we work for free and we lose our costs that have been advanced.

Why should I hire the Pantas Law Firm to represent me?

You may ask, why do I need a private attorney to recover my unpaid overtime? Why not just use the Florida Department of Labor? The Florida Department of Labor is a great agency staffed with many great people. However, they are often overworked and understaffed, and sometimes lack the manpower to adequately protect all the employees in this state.

Additionally, the DOL's stated motive is to "bring the employer back into compliance", not to make sure YOU are fully and completely compensated. Additionally, the DOL's mandate does not usually include the recovery of "liquidated damages" on behalf of the employees— this is significant and is an amount equal to your overtime claim. Just as significant, the DOL has no direct financial motive to promptly collect your unpaid overtime. We, on the other hand, only represent YOU and our one and only objective is to recover EVERYTHING you are entitled to, including liquidated damages.

Moreover, Federal and Florida law allow a private attorney to recover fees from the employer if the employee has had to hire a lawyer to recover his or her unpaid wages. These fees are often more than the wage claim itself. Because of this, the employer has a greater incentive to resolve the claim than with the Florida Department of Labor.

Our case load is very manageable so we can provide you the personal attention that the Florida Department of Labor just can't. Also, we file most of our claims in United States Federal District Court which can vastly improve the efficiency and speed of the recovery process. You pay us nothing unless we win your case, and our fees come from the recovery.

Will this case settle or will we have to go to trial?

Approximately 90-95% of cases settle before an actual trial. Settlements may happen at any point in the action from as early as pre-suit (before a lawsuit is filed) to mediation (a formal settlement conference), to as late as “on the courthouse steps.” The main thing to focus on is not if and when a case settles, but on being prepared to have a trial. Once the insurance company and defense attorney realizes that a case is well prepared and ready to be tried if need be, they are more willing to settle for a reasonable amount without the need for a jury to decide the case.

How is overtime required to be calculated, and when must it be paid?

The regular rate of pay is the rate at which overtime compensation must be calculated. For each hour of overtime worked an employee must be paid one and one-half times the employee’s regular rate of pay. The regular rate of pay does not necessarily equal an employee’s hourly rate of pay. Included in the regular rate of pay are work-related payments that are not made for overtime work such as shift differentials, bonuses, longevity pay, educational incentive pay, etc. Thus, the regular rate always equals or exceeds an employee’s hourly rate of pay or, if the employee is salaried, the employee’s hourly equivalent.

INCLUDED IN THE REGULAR RATE OF PAY, regardless of whether or not an employee is salaried or hourly paid, are bonuses, shift differentials, educational incentive pay, longevity pay, and with the exception of the items listed below, any other non-discretionary type of payment. Gifts, discretionary bonuses, pension benefit plans, profit sharing and thrift saving plans may all be excluded from the calculation of the regular rate. In addition, if an employer pays an extra hourly premium that equals or exceeds the time and one-half rate for working on a particular holiday or day of the week, the employer may exclude that premium. Some examples of types of payments included in the regular rate are explained below:

SHIFT DIFFERENTIALS: Some employers’ pay a shift differential if an employee works at night on Sundays or holidays. If the differential is less than 50% of the employee’s hourly rate of pay, it must be included in the calculation of the regular rate of pay used to compute the employee’s overtime rate.

BONUSES: Some employers fail to adjust an employee’s rate of pay after the employer pays the employee a bonus. Non-discretionary bonuses 3©¯4 bonuses that are tied to working certain hours or achieving certain results 3©¯4 must be included in the overtime rate paid. Discretionary bonuses, which are in the nature of a gift, may be excluded. In determining the overtime rate, a non-discretionary bonus may be prorated back over the life of the time period for which it is being paid, within reason.

LONGEVITY PAY: Some employees receive additional pay in recognition of how long they have been employed. These types of payments must be included in the regular rate of pay.

INCENTIVE PAY: Some employers provide additional payments if an employee achieves something such as education or training. These payments must be included in the regular rate of pay.

How do you compute the Regular Rate for salaried employees?

As noted above, many salaried employees are entitled to receive time and one-half overtime compensation. Computation of the rate at which overtime must be paid for salaried employees is based on the number of hours for which the employee’s salary is intended to compensate him or her. As with hourly rate employees, included in the computation of the regular rate must be bonuses, shift differentials, educational incentive pays, longevity pay and the like.

Salary for Fixed Number of Hours. Most salaries are intended to compensate an employee for his or her regularly scheduled hours during the workweek. To compute the regular rate of pay, the salary plus all other inclusions in the regular rate is divided by the number of hours that the salary is intended to compensate the employee. The employee is entitled to receive one and one-half times his or her regular rate of pay for each hour of overtime worked over 40 HOURS IN A WEEK.

For example, if an employee is paid $600 a week as salary and works a work schedule of 40 hours a week, the employee’s overtime rate of pay is computed by dividing $600 by 40. Thus, for each hour of overtime over 40 hours a week, the employee is entitled to receive 1.5 times $15.00, which equals $22.50 an hour.

Fixed Salary for Varying Number of Hours. Some employers pay employees a fixed salary for whatever hours an employee is required to work in a workweek. This is permitted under the U.S. Department of Labor’s regulations only if the employee and employer have a clear mutual understanding that the salary is intended to compensate the employee for the straight time portion of his or her hours whatever the number of hours that the employee is required to work. If such an arrangement is properly established, according to the Department of Labor, an employer is obligated to pay only additional "half-time" pay for each hour in excess of 40 hours a week. Some courts and some state overtime laws, however, prohibit this type of calculation method and require that time and one-half overtime pay, rather than just "half-time" pay, be made in addition to employees’ salaries.

What are some commonly used, but illegal, payment methods?

Fixed sum for varying amounts of overtime: Some employers pay a fixed sum that they attempt to use as overtime compensation. A lump sum payment for work performed during overtime hours without regard to the number of hours worked does not qualify as overtime compensation. This is true even if the lump sum exceeds the amount to which the employee would be paid on a per hour basis. To properly compute the employee’s overtime pay, the lump sum payment must be added to the employee’s other overtime compensation and then the employee’s regular rate of pay determined. The employee is entitled to overtime pay equal to 1.5 times this regular rate of pay.

Salary includes regularly scheduled overtime hours: Another similar method occurs where an employer asserts that a portion of an employee’s salary constitutes overtime pay. This is not allowed except under very specific circumstances called Belo contracts. Overtime pay must be in addition to and cannot be a part of an employee’s salary.

Bonus as part of overtime pay: Some employers pay bonuses to employees and tell them that the bonus includes the employee’s overtime pay for working on a particular project or job. Unless the "bonus" is tied to each hour worked, it does not constitute overtime compensation.

Are there special rules for tipped employees?

Congress has enacted a special exception to the rules for computing the minimum wage for tipped employees. An employer is permitted to pay tipped employees a "cash wage" of only one-half the 1996 minimum wage ($4.25/hour). This means employers can pay tipped employees a cash wage of only $2.12 an hour, and it may credit tips to make up the rest of the minimum wage.

The tip credit the employer receives may not exceed the value of the tips the employee has actually received. If this amount fails to meet the minimum wage, the employer must make up the difference.

Employers may apply the tip credit only if: (A) The employee is working in a job in which the employee customarily and regularly receives $30.00 a month in tips; (B) The tipped employee has been informed by the employer about the tip credit law and that the employee must be allowed to retain all tips the employee receives, with the exception that tip pooling with other employees arrangements are allowed; and (C) Employers cannot require employees to share tips with their employer.

If an employer violates any of these three elements, a tip credit is not allowed.

Examples of employer abuse concerning the tip credit are employers who compel employees to kickback tips or who do not provide employees with all the tips received. For examples, some restaurants mandate a 15% or higher tip charge on large parties at a restaurant. This is a tip that is the employees to keep if the employer is using the tip credit provisions of the Act. Another example is that some employers will work employees at two jobs — one is a job in which tips are received and one is not. For example, an employee who works part of his shift as a waiter and part as a host at a restaurant. The employer should not take the tip credit for the entire shift — but only for the time the employee works as a waiter.

Are there special rules for employees of hospitals and resident care facilities?

There is a special partial overtime exemption for employees of hospitals and residential care facilities. If an employer has a prior agreement or understanding with these employees that overtime will be computed over 14 days instead of 7 days, it may do so and pay employees on the basis of 80 hours every two weeks rather than 40 hours a week. The agreement or understanding must be reached before the overtime is worked.

Are employees who work in restaurants or grocery stores subject to more frequent violations of the FLSA?

Yes, FLSA violations are rampant among restaurants, grocery, and other food preparation employers. Remember, no one can "volunteer" to work for free for his or her employer. Yet, employers try to either trick or to intimidate employees into doing so. Some recent cases illustrate this:

• Chain restaurants have been sued in court for working employees "off-the-clock," failing to pay restaurant managers overtime compensation, and improperly taking a "tip credit" for time in which workers are not working in a job in which tips are paid. These cases have been settled for millions of dollars.
• Restaurants have been sued for taking a percentage of the employees’ tips when the employer charges a fixed percentage of patrons’ meals as tips. The employer was successfully sued for fraud as well as wage violations.
• Workers at meat packing facilities have sued to recover millions of dollars against facilities for unpaid time spent donning garments and preparing equipment before and after their shifts.
• Grocery works at a grocery chain have successfully sued to recover millions of dollars for off-the-clock work. The employees alleged they worked off the clock and their employer engaged in the following unlawful practices:
• Punishing employees who fail to perform assignments within unrealistic time periods thereby encouraging and rewarding employees who perform work "off-the-clock" without compensation.
• Instructing bookkeepers and others to record meal periods as non-work time even where the employees worked through their meal periods
• Reducing alleged salaried managers pay for disciplinary infractions for periods of less than a day. This can make the managers hourly workers eligible for FLSA overtime compensation.
• Rewarding employees who work off-the-clock by commenting favorably on their working off-the-clock, and encouraging them to do so by suggesting promotions and other benefits may be tied to working off-the-clock.
• Poultry workers are suing for overtime for time spent donning and taking off safety and sanitary gear before and after work hours, and for working them off the clock, and failing to pay for short breaks.
• Chicken catchers are suing for overtime that they were denied when their employer alleged the chicken catchers are "independent contractors."

When does travel time count as work time?

Generally, travel time conducted for work during work hours is compensable whereas ordinary home-to-work travel is not. Set forth below are some different travel circumstances:

Working While Traveling: Time spent working while traveling is compensable. For example, in the federal government travel time while driving a government vehicle, at least outside of the employee’s regular commute, is considered compensable work time.

Travel On Weekends: Travel on weekends is compensable even if no work is performed so long as the work hours cut across the administrative workday for the employee. For example, if the employee’s administrative workday is 7:00 a.m. to 5:00 p.m. and the employee travels on a weekend during those hours, the travel time is compensable.

Emergency Travel from Home to Work: This time can be compensable depending on the circumstances. For example, if a worker is called in the middle of the night and ordered to return to work. Interestingly, the Department of Labor takes no position on the compensability of this time.

Can an employee agree to waive their overtime?

No! Overtime pay may not be waived by agreement between the employer and employee. If the employer does not want employees to work overtime, it must establish and enforce workplace rules prohibiting overtime.

In addition, an employer who is caught violating the overtime laws will not avoid back payments by cutting a deal directly with employees. Courts have found that agreements that purport to waive back overtime pay claims are unenforceable unless the Department of Labor supervises them or an attorney represents the employee.

What damages can an employee recover under the FLSA?

A. OVERTIME PAY CASES: Under the FLSA, back pay damages equal the difference between what an employee would have been paid for overtime hours had the employer complied with the FLSA and the amount that the employee actually received as payment, if anything, for working overtime. In addition, liquidated damages equal to the amount of back pay are owed unless the employer is able to prove that it acted in good faith. In cases in which liquidated damages are not awarded, prejudgment interest is recovered in most cases. The recovery of attorneys’ fees and costs from the employer is mandatory under the FLSA. Most state overtime laws prescribe similar or identical remedies.

B. ANTI-RETALIATION REMEDIES: In addition to the remedies that are available in an overtime case, in a retaliation case, injunctive relief and front pay are available. Injunctive relief is the court ordering an employer to refrain from certain conduct or ordering it to engage in certain conduct. Front pay is pay, which is an estimate of how much in benefits and money an employee would have received in the future had he not been retaliated against.

How far back can you go to recover overtime pay?

There is a two-year statute of limitations that applies to FLSA overtime claims which is extended to three years if it is proven that the employer "willfully" violated the law. This means that if you filed a case today, you would be able to recover back overtime pay going back two years and possibly three years from today. Most state overtime laws follow the FLSA recovery period, though some are longer.

WARNING! Filing a wage and hour complaint with the U.S. Department of Labor (DOL) does not toll the statute of limitations! For example, if you file a complaint with DOL today and DOL takes a year to investigate your claim without taking any action, you have lost a year of back pay. If you then decide to pursue a case on your own or DOL takes your case to court, the statute of limitations will be determined by going back two years from the date your complaint is filed in court (three years for a willful violation).

How do employees prove their hours worked?

The FLSA requires employers to keep accurate payroll records of employees’ work hours and the amounts paid to them. This is true even for employees who the employer thinks are excluded from the overtime laws. If an employer fails to maintain records, the courts rely on employees’ reasonable estimates of their work time that is provided through employee testimony or written documentation.

Obviously, if an employee has maintained his or her payroll records that is very helpful. However, if an employee does not have pay records, and the employer does not either, the courts will usually credit the employee’s recollection of work time.

Are overtime laws different for government employees?

The application of the overtime laws to federal, state, and local government employees is, for the most part, the same as the application in the private sector. There are a few noteworthy differences, however.

Police and fire fighters are subject to a partial overtime exemption so that they are not entitled to FLSA overtime until after they have worked more hours than other employees.

The rules applicable to state and local government employees differ from those applicable to federal employees. To view the overtime laws applicable to federal employees click here.

The main differences between the application of the FLSA overtime laws in the private sector and in the government are as follows:

The payment of compensatory time is permitted to government employees as long as there is an agreement before overtime work commences that compensatory time will be paid. The maximum amount of compensatory time that can be accrued is 240 hours for most government employees (480 hours for public safety workers). Employers cannot compel employees to accept compensatory time as payment for overtime work;

Employees can volunteer to work for their governmental employer to perform work that is not of the same type that the employee normally performs. For example, a fire fighter can volunteer to be a counselor at a youth facility. Moreover, (s) he cannot act as a volunteer fire fighter for her employer. Private citizens can volunteer for public employers.

Governmental employees who are employed by the same public agency may, with their employer’s approval, trade work shifts without affecting their overtime compensation.

Training time that is required by a higher governmental authority — such as a state requiring a city to train its employees — does not have to count as work time.

What jobs can legally be denied overtime pay?

The FLSA has a number of categories of employees who are exempt from the overtime laws. In some cases, however, state laws cover the employees who are exempt from the FLSA. In addition, exemptions are applied on a workweek basis. Employees who perform non-exempt duties in a workweek typically are not exempt that week and are entitled to FLSA overtime compensation for overtime hours worked that week - regardless of their FLSA status the rest of the year.

There are a few well-established principles regarding exemptions to the Act. Employees are presumed to be entitled to overtime pay; The employer bears the burden of proving that an employee fits within a claimed exemption; Job duties, not job titles govern whether an exemption applies. Employers often give employees fancy administrative or professional sounding job titles for purposes of exempting them from overtime pay. Legally, this does not work. In determining whether or not an exemption to overtime pay applies, an employee's actual job duties must be evaluated;

Lastly, the exemptions to the overtime exemptions are narrowly construed against the employer and if there is a reasonable doubt as to whether an exemption applies, the employee is supposed to receive overtime compensation.

What are the "White Collar" exemptions?

These are the administrative, professional and executive exemptions. They are misnamed the "white collar" exemptions because in today’s economy the overtime laws cover many office workers.

Are professionals exempt from overtime pay?

The professional exemption is intended to apply to employees who work in recognized professions that typically require a four year college degree or higher such as doctors, lawyers, engineers, architects, scientists, teachers in a recognized school system, etc. Disputes involving the professional exemption typically arise when an employee has developed an area of expertise through on-the-job experience that the employer attempts to claim is a profession such as equipment technicians or journalists or when a person trained as a professional is not performing professional work such as an accountant who is doing bookkeeping.

There is a three-part duty test for the professional exemption. With two exemptions, an employee who is not salaried cannot be exempted from receiving overtime compensation as a professional regardless of the employee’s job duties. The exemptions are for teachers, and doctors and lawyers who hold valid licenses to teach, practice medicine or law To exclude an employee from receiving overtime pay as a professional, an employer must prove that an employee meets all three parts of the test.

The first step is that the employee’s primary job duty must be to perform the work of a "profession." This means that the work that the employee is performing is the type of work that is typically performed by persons who have developed an area of expertise by obtaining a four year degree through college study or higher in a specialized field. To be considered a professional under the FLSA, the employee must have both practical and theoretical knowledge of the profession.

Second, the employee’s work must consistently involve the exercise of independent judgment and discretion with regard to important decisions within the profession.

Third, the work must be intellectual and varied as opposed to routine, mechanical or physical work. It cannot be the type of work that can be easily standardized.

Are artistic professionals exempt from overtime pay?

Persons employed in the arts are exempt from receiving overtime under the artistic professional exemption. This is most often misapplied to persons who work in fields that have limited avenues for creativity such as draftsman, graphic artists, journalists, technical writers, copy writers and the like.

To be excluded from receiving overtime as an artistic professional, an employee must perform work that is original and creative in nature in a field of recognized artistic endeavor. The results must be dependent primarily on the invention, imagination or talent of the employee. The work must also require the consistent exercise of discretion and independent judgment, and it must be predominantly intellectual and varied.

Are computer professionals exempt from overtime pay?

This exemption is limited to computer programmers and computer systems analysts. In contrast, employees who are engaged in the maintenance, operation or repair of computers and software are clearly entitled to receive overtime. Computer systems analysts, computer programmers, and software engineers in the computer software field are exempt from receiving FLSA overtime only if they meet certain tests Congress has established for the computer professional exemption.

The exemption only applies to highly skilled employees who have achieved a level of proficiency in the theoretical and practical application of a body of specialized knowledge in computer systems analysis, programming and software engineering. To be considered an FLSA exempt "computer professional," the employee must work free from close supervision. In addition, these types of employees are exempt only if their primary job duty involves programming, design, or modification of software, or the application of "systems analysis techniques and procedures, including consulting with users to determine hardware, software or system specifications."

In addition, in order for this exemption to apply, the computer professional must either be paid on a salaried basis, or if he or she is hourly paid, they must be paid at least $27.63 an hour. In other words, hourly paid computer employees who make less than $27.63 per hour cannot be excluded from receiving overtime under this exemption.

Are executives exempt from overtime pay?

The executive exemption applies to managers and high level supervisors who are paid on a salaried basis. A two-part duty test is used to determine whether salaried employees can legally be denied overtime compensation on the basis that they are "executives." (There is a three-part test that is applied to employees who make less than $250 a week). To prove that its employees meet the duty test, an employer must establish that the primary duty of the employee is managerial. As a general rule of thumb, this means that the employee spends fifty or more percent of his or her time performing managerial duties. Second, the employer must establish that the employee customarily and regularly directs the work of two or more employees. In a 1999 decision, a federal court ruled that employees with the title "supervisor" who did not supervise a permanently assigned group of employees were improperly classified as exempt executives. The supervisory employees were found to be more like group leaders or forepersons than managers because they supervised the activities of different employees each week or month.

Are outside sales people exempt from overtime pay?

This exemption applies to employees who engage in making sales away from the employer’s place of business. It does not apply to telemarketers or any other salespeople who make sales from their employer’s place of business. The outside sales exemption is limited to employees who customarily and regularly work away from the employer’s business making sales or obtaining orders or contracts from clients, and who do not spend more than 20 percent of their work time performing non-exempt work. In other words, 80 or more of the hours worked in a workweek must consist of outside sales work, otherwise the sales person is entitled to overtime under the FLSA.

Are commissioned retail sales people exempt from overtime pay?

Employees of retail or service establishments are exempt from receiving overtime if more than half of the employee’s earnings come from commissions and the employee averages at least one and one-half times the minimum wage for each hour worked. In addition, for this exemption to apply, 75 percent of the employer’s annual dollar volume of sales must be recognized as retail sales. This prevents the retail sales exemption from applying to wholesalers.

Are truck drivers exempt from overtime pay?

Excluded from receiving overtime are drivers, driver’s helpers, loaders and mechanics employed by a motor carrier (cars, trucks, etc.), if the employee’s duties affect the safety of operation of vehicles in transportation of passengers or property in interstate commerce. This exclusion was enacted because these types of employees are subject to regulation by the Department of Transportation.

Are independent contractors protected by the FLSA?

Independent contractors are not, of course, entitled to FLSA overtime pay. People who work as employees are entitled to greater legal protections and monetary benefits than independent contractors. Of course, in theory, independent contractors are free from the set work time, discipline and other restrictions that govern employees’ conduct. There is much less regulation involved for employers if they treat their workers as "independent contractors" rather than "employees." Employees have many more legal rights: The right to overtime pay, to unionize, to social security credits, protection against discrimination (age, race, sex, disability, national origin, etc.), unemployment insurance and a multitude of other benefits. Independent contractors primarily only have the right to be paid pursuant to their contract with the employer.

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