New Job? Tips for Avoiding the Misclassification Trap
You searched Craigslist for months and finally landed that new job. The terms seem acceptable, as they’ve offered to pay you a salary and give you something to do besides play video games and watch re-runs of SportsCenter for several hours a day. You may have even gotten a paycheck or two, giving you the money to pay for dinner out on the weekend and the ability to get the stained couch out of your living room. Everything is going great. So great that you are working all day and all night to pull in that “salary.”
You feel like you are putting in “overtime” but make the same amount every week, no matter how many hours you work. Because you are happy to have a job you keep plugging away, accepting the fact that your boss told you that you were being “hired” as a “salaried employee” and that the company “can’t afford to pay overtime.” Sound familiar? If so, follow the tips set forth below to make sure you aren’t missing out on a bigger paycheck.
Am I Overtime Exempt just because I earn a Salary?
No. Under federal law, employers are required to pay nonexempt employees time and a half for hours worked in excess of 40 in a given week. Although you are proud of yourself for landing that new job and want to brag to your friends, it does not make you look more successful to automatically assume you are exempt just because someone told you so. Quite the opposite, as you are denying yourself compensation to which you are legally entitled! Think about it this way, if you told your friends you took less money than your boss offered, how would they look at you?
With few exceptions, to be exempt a salaried employee must (a) be paid at least $23,600 per year ($455 per week), (b) be paid on a salary basis, and also (c) perform exempt job duties. These requirements are outlined in Department of Labor Wage and Hour regulations. Even if you meet the above requirement, that still does not mean you are an exempt employee! This is a complicated issue that employers frequently do not think through when starting a business and adding to their workforce.
Federal law requires that exempt employee salaries come from particular types of work duties. Very generally (and subject to some exceptions), the three exemptions recognized by the federal law are those employees performing primarily 1) “executive” duties; 2) licensed “professional” duties; or 3) “administrative” duties. Unless you are a licensed doctor, attorney, or a high-level manager of your company, it is unlikely that you fall into either the professional or executive exemption. Even though you work in an office and perform non-manual labor, it is difficult to prove you are actually performing “administrative” work as well (for example, many courts have ruled that “administrative assistants” were performing nonexempt duties).
How do the Above Classifications Relate to Me?
Simply stated, if you are working more than 40 hours per week and are not being compensated for the additional time, do not hesitate to contact the Employment Attorneys at HKM Employment Attorneys LLP at (206) 838-2504 for an analysis of your situation. You may be entitled to significant back pay and damages if your employer has misclassified you as an exempt employee.