Has your boss been working you more than 40 hours per week, either by request or mandatorily, and then not paying you for it? If you are a salaried employee, you may be wondering if this is legal or not. The answer is both yes and no; some salaried employees are entitled to overtime, and some are not.

Fortunately, there are laws in place to protect your right to be paid for overtime hours when you are not exempt.

Our Overtime attorneys may be helpful in determining where you stand with regard to overtime pay.

The Fair Labor Standards Act (FLSA) is a federal act that was enacted in 1938 at the tail end of the Great Depression in an effort to get people back to work. At the time of enactment, overtime pay, or any hours past 40 per week, made it so that employers could now pay two people for less than they could one person who worked 80 hours per week, since they now had to pay time and a half for overtime hours.

The act also includes regulations regarding minimum wage and child labor.

For the sake of this discussion, we will focus on the overtime pay.

Basically, a non-exempt employee is entitled to time and a half pay for any hours worked over 40 per week. Note that the FSLA does not limit hours worked per day, or days worked per week, including overtime.

It also has no regard to things such as vacation, holiday, severance, or sick pay or pay raises or fringe benefits. Accordingly, an employer cannot use deductions like uniform costs to reduce overtime pay.

Its only purpose with regards to overtime is that one must be paid for work over 40 hours per week if they are not exempt.

Whether or not a salaried employee must be paid overtime depends on whether the employee qualifies for an exemption from the overtime laws. Not all salaried employees are exempt from overtime requirements.

If an employee does qualify for an exemption, it means the employer does not have to pay the employee overtime for hours worked over 40 per week.

The available exemptions apply to five divisions – professional, executive, administrative, computer, and outside sales.

These divisions share one similar requirement, in that the employee has to make no less than $455 per week. Each division also has its own requirements to qualify for exemption from paid overtime.

 

• Professional – broken down into two categories, learned and creative. Creative applies to those employees who are responsible for invention, imagination, or talent in a certain artistic strength. Learned applies to those who have advanced degrees in science or learning, such as doctors and lawyers.

• Executive – must manage or supervise an enterprise, or subdivision of an enterprise consisting of at least 2 employees, and be in charge of the hiring, advancement, or termination of employees.

• Administrative – must perform office/non-manual work relating to the operations of the enterprise, such as accounting and marketing staff, which make business decisions independently.

• Computer – must make no less than $27.63/hr. if not paid on a salary, and have a skilled technical position. Further specified by the U.S. Department of Labor, the employee’s primary duty must consist of:
  • The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
  • The 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;
  • The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or
  • A combination of the aforementioned duties, the performance    of which requires the same level of skills.

• Outside Sales – must be away from the place of business making sales, or handling orders and contracts for services.

 

Conversely, those considered “blue collar” workers, such as skilled manual laboring workers (electrician, framer, plumber, etc.), and those considered first responders such as emergency personnel and law enforcement, are NOT exempt from overtime pay, regardless of how much they are paid.

If you believe your employer is in violation of the overtime laws, contact an experienced Florida Labor Law attorney as soon as possible to discuss your options.

To learn more, please download our free Overtime Pay in Florida here.