Exempt Employee Misclassification

Under the Fair Labor Standards Act (FLSA), many workers in New York are required to be paid overtime. Nonetheless, the law contains a number of exemptions, particularly for salaried workers in executive, administrative and professional positions; employers frequently use these exemptions to misclassify employees and avoid paying them overtime. The fact that an employee is paid a salary does not mean that he or she is automatically exempt from overtime. If you believe your employer has misclassified you as exempt, you may have a viable wage and hour claim.

Lipsky Lowe, LLP, a premier employment law firm in the greater New York area, routinely handles wage and hour claims, including exempt employee misclassifications. Well-versed in the applicable provisions of the FLSA, interpretative Labor Department guidance, and relevant case law, we have a proven history of helping misclassified employees obtain compensation for unpaid overtime, often through collective or class action lawsuits. When you work with our wage and hour attorneys, you can count on us to provide you powerful representation inside or outside of the courtroom. Whether through negotiation or litigation, we will fight to help you obtain every dollar you deserve.

When is an employee exempt from FLSA overtime requirements?

To classify an employee as exempt, there are two tests. First, the worker must be paid a minimum guaranteed salary of at least $455 per week, whereas hourly workers are not guaranteed that level of pay; all hourly employees must receive overtime pay (one-and-one-half times their hourly rate) for hours worked over 40 per week. In addition, only salaried employees can be classified as exempt. They also may be entitled to overtime based on their actual duties, however.

Generally for a salaried employee to be classified as exempt, the employer must be able to show that the employee’s duties fall under one of the following categories:
Executive — The employee must be a manager who has (1) direct oversight of at least two full-time employees and (2) authority to hire and fire or to substantially affect their job status through his or her recommendations.

  • Professional — The employee primarily engages in work requiring substantial knowledge and training and the use of independent professional judgment. This exemption also requires sustained formal training in the field. As an example, doctors, accountants, and lawyers are typically deemed exempt, provided that they are not paid hourly and are actually practicing medicine, accounting or law.
  • Administrative — The employee engages in non-manual, officework necessary for the employer’s business operations that requires the use of independent judgment on significant matters. In New York, the courts have rules that this exemption only applies to employees in general business operations and not those actually engaged in creating, providing, or marketing the employer’s product or service.
  • Computer – The employee must either be a computer systems analyst, programmer, software engineer or engaged in the creation, modification or application of a program or system. The misclassification of IT workers occurs not just in the tech sector, but across multiple industries.

While there are FLSA exemptions for outside salespeople, long-haul truckers and other similar positions, the above exemptions are frequently abused. As an example, employers often misclassify workers as administrative personnel by using titles such as “account representative” or “assistant manager” and then fail to pay overtime. The exemptions are based on actual job duties not titles, however, which means many salaried workers may be entitled to overtime.

Contact Our NYC Wage & Hour Lawyer

If you work in the greater New York area, you probably know that there’s no such thing as a “9-to-5 job.” Most employees work hard, often logging hours beyond the 40 hour overtime threshold, and are not compensated for their work. If you are not paid on an hourly basis, and you are not an executive, professional, administrative, or computer employee, you are entitled to overtime pay for all hours beyond 40 hours per week. Well-versed in the FLSA and New York’s Labor Law, our wage and hour attorneys will fight for the compensation you deserve.

When you consult us, we will take the time to explain your rights and conduct an extensive investigation to determine the degree to which overtime pay violations are occurring in your workplace. It is worth noting that exempt employee misclassifications are usually not isolated incidents and many of your coworkers may be similarly situated, in which case, one course of action is to file a class action lawsuit. This type of lawsuit combines the claims of many individuals into one claim, which can not only maximize your recovery but also induce the employer to settle the matter.

While you likely have concerns about filing a wage and hour claim against your employer for failing to pay overtime, you should know that it is unlawful for employers to retaliate against employees who complain about wages. This means you cannot be fired, demoted, reassigned, harassed, or discriminated against in any way for taking legal action and asserting your rights to overtime pay. When you consult the wage and hour attorneys at Lipsky Lowe, you can rest assured that we will be the strength in your corner. Please contact our office today to learn how we can help.

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