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Although most workers do have the right to be paid overtime, some workers do not have this right. These workers are called "exempt" from overtime. Before you decide that an employee is not entitled to overtime, you should check with a lawyer to see if the worker is really "exempt" or not.
Normally, employees with a lot of responsibility and freedom on the job are exempt from overtime. These employees frequently get paid by salary and not by the hour. But it's not always that simple. Just because the worker has a lot of responsibility, or just because the worker gets paid by salary, doesn't mean you don't owe overtime pay. There are very specific tests in the laws to determine who is exempt and who is not. What matters is what the worker does, not how the worker is paid.
Exemptions vary from state to state. Even if a worker is exempt under one of the tests listed below, your state might have stricter laws that give the worker the right to be paid overtime.
- "Professional" employees
- "Administrative" employees
- "Executive" employees
- Outside salespersons
- Other exempt employees
- Is my employee exempt if I call him or her "exempt"?
- How is overtime pay calculated?
"Professional" employees
"Professional" employees are exempt from federal laws requiring overtime pay. These employees have received high-level training and usually an advanced degree. Professional employees also make important decisions without a lot of supervision.
Under federal law, people who normally qualify as professionals include lawyers (but not paralegals), doctors, dentists (but not hygienists), registered nurses (but not practical nurses), accountants, architects, actuaries, scientists with advanced degrees, teachers (but not day care providers), and highly trained computer professionals. To be an exempt "professional," the employee also must earn over $250 a week.
Some states define "professional" more narrowly than federal law, and this might give the employee the right to overtime pay even if the job seems somewhat professional.
Because this area is very complicated, you should contact a lawyer who specializes in employment law if an employee claims that he or she has been denied overtime because of misclassification as a professional.
"Administrative" employees
Under federal law, an employee who is legally considered an "administrator" is not entitled to overtime pay. Under a general legal test for who is an administrator, the employee will probably not be an exempt administrator unless he or she meets all of the following requirements:
Earns at least $250 per week, and
Main responsibilities include doing sophisticated office work that has something to do with the company's policies or business operations, and
Spends a lot of time exercising "discretion and independent judgment," i.e., is normally required to make important decisions without a lot of supervision.
An employee who doesn't do all of the above things is probably not an "administrator" and will be entitled to overtime.
Some states define "administrative" more narrowly than federal law, and this might give the employee the right to overtime pay even if you think the job seems somewhat administrative.
Because this area is very complicated, you should contact a lawyer who specializes in employment law if an employee claims that he or she has been denied overtime because of misclassification as an administrator.
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