 |
|
|
|
| Are You Being Paid Properly for the Time You Spend at Work?
By Glass Krakower LLP In the normal course of business, employers usually classify their employees as either “non-exempt” (i.e. hourly employees who are entitled to overtime pay for all hours worked over 40 in a given week), or exempt employees (i.e. salaried employees who are not entitled to overtime). However, there is a common misconception that if an employee is paid a weekly salary the employee is automatically not entitled to receive overtime pay for hours worked over 40 in a week. The reality is that many employees who are paid a regular salary may still be eligible for overtime unless there job falls into a specific category of exemption them from overtime under the law. There are five different exemption categories: Professional; Administrative; Executive; Outside Sales; and Computer. Professional Exemption -- To qualify for the learned professional employee exemption, all of the following criteria must be met: • The employee must be compensated on a salary or fee basis at a rate not less than $455 (or $536.10 in New York) per week; • The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment; • The advanced knowledge must be in a field of science or learning; and • The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. Executive Exemption -- To qualify for the executive employee exemption, all of the following criteria must be met: • The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $455 (or $536.10 in New York) per week; • The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise; • The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and • The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight. Administrative Exemption -- To qualify for the administrative employee exemption, all of the following criteria must be met: • The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 (or $536.10 in New York) per week; • The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and • The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. Outside Sales Exemption -- To qualify for the outside sales employee exemption, all of the following criteria must be met: • The employee’s primary duty must be making sales (as defined in the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and • The employee must be customarily and regularly engaged away from the employer’s place or places of business. Computer Employee Exemption -- To qualify for the computer employee exemption, the following criteria must be met: • The employee must be compensated either on a salary or fee basis at a rate not less than $455 (or $536.10 in New York) per week or, if compensated on an hourly basis, at a rate not less than $27.63 an hour; • The employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the duties described below; • The employee’s primary duty must consist of: 1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications; 2) 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; 3) The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or 4) A combination of the aforementioned duties, the performance of which requires the same level of skill. See United States Department of Labor Fact Sheets for further details. The above list is not exhaustive, and other state and federal exemptions from overtime may apply. Therefore, when dealing with the issue of employee overtime, it is always a good idea to review issues with your local state or federal office of Department of Labor office or with an attorney who practices in the field of labor and employment law. This article was prepared by the law firm of Glass Krakower LLP, 20 Broadway, Ste. 1, Valhalla, NY 10595, 877-7GK-FIRM. The firm is experienced in all areas of labor, employment, and education law. This article is not legal advice and is not intended as legal advice, and is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does not create any attorney client relationship between you and the authors and/or publisher. |
|