Exempt vs Non Exempt Employees
Do salaried employees qualify for overtime?
Yes, many do. This is one of the most misunderstood areas of wage law. A common assumption is that salaried workers are not entitled to overtime. That is not what the law says.
The Fair Labor Standards Act requires overtime pay for most employees who work more than 40 hours in a workweek. The exemptions are specific and narrow. To qualify as exempt, an employee must pass two separate tests: a salary test and a duties test. Both must be met. When either one fails, the employee is entitled to overtime.
Many employers apply the exemption broadly, assuming that any salaried worker above a certain pay level is automatically exempt. That assumption is often wrong, and the cost of that error falls on the worker.
Many employers apply the exemption broadly, assuming that any salaried worker above a certain pay level is automatically exempt. That assumption is often wrong, and the cost of that error falls on the worker.
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The Salary Threshold Test
The first test is straightforward. Employees who earn less than the applicable salary threshold are entitled to overtime. Job title and duties do not matter at that level.
The federal threshold is $684 per week, or $35,568 per year. Several states have set higher minimums. In California, the threshold is $1,352 per week. In Washington, it is $1,541.70 per week. In New York City, it is $1,275 per week.
Employees whose salaries fall below the threshold that applies in their state were legally owed overtime for every hour worked past 40 in a workweek, regardless of how their employer chose to classify them.
The Duties Test
Earning above the salary threshold is not enough to make a worker exempt. The second test looks at what the worker actually does every day. Federal law recognizes three categories of exempt employees: executive, administrative, and professional.
Executive Exemption
To qualify, the employee must primarily manage the business or a recognized department of it. They must regularly direct the work of at least two full-time employees. They must also have real authority over hiring, firing, or promotion decisions, not just the ability to make recommendations. A manager in title who spends most of their time doing the same work as the team they oversee is not an exempt executive under the law.
Administrative Exemption
To qualify, the employee must perform office or non-manual work directly related to the management or general business operations of the company. Their primary duty must include the exercise of independent judgment on significant matters not just following set procedures or completing tasks assigned by others. A worker who executes decisions rather than makes them generally does not meet this standard.
Professional Exemption
To qualify, the employee must perform work that requires advanced knowledge in a field of science or learning, typically acquired through a prolonged course of specialized study. Think doctors, lawyers, engineers, accountants, and scientists. When a job can be learned on the job without a degree or years of formal study, it likely does not meet this standard.
Read those three descriptions and think about your actual day. Not your job title. Not your offer letter. What you actually do, hour by hour. If none of these match, your classification may not hold up under the law.
Types of Unpaid Wage Claims We Handle
We handle the full spectrum of wage and hour violations under federal and state law, with particular expertise in:
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Employee Misclassification
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Expense Reimbursement
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Untimely Wage Payment
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Meal and Rest Break Violations
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Employer Tip Theft
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Minimum Wage Violations
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Off-the-clock Work
Common Ways Salaried Workers Are Misclassified
Title Without Authority: Having a fancy title like "Manager" or "Supervisor" doesn't automatically mean you lose your right to overtime. If you spend most of your shift doing the same work as everyone else, and you don't have the power to hire or fire people, you are likely entitled to extra pay for extra hours. The bottom line is that your actual daily tasks matter more than the name on your business card. If you are working "manager" hours without manager authority, review your daily duties and ask about your overtime eligibility.
Reclassification Without Proper Pay: When laws change, many employers switch workers from "salary" to "hourly." If this happened to you, your employer must track every minute you work and pay you overtime for anything over 40 hours a week. It is illegal for a company to call you "hourly" on paper but still expect you to work extra hours for free. If your pay doesn’t match the time you put in, reach out to an attorney who can help you find out if you could be owed.
High-Salary Loophole: Some bosses think that just because they pay you a high salary, they don't have to pay you overtime. That is false. To be exempt from overtime, you must earn a certain amount AND perform specific high-level professional or executive duties. High pay alone is not an excuse to skip overtime. This means you can earn a great salary and still be legally owed overtime pay if your job tasks don't meet the "duties test."
How To Recover Unpaid Wages as a Salaried Employee
The first step is determining whether you were classified correctly or not. That requires a review of job duties, your salary, and what the law says in your state for the minimum limit you should be paid.
Josephson Dunlap reviews these cases at no cost. A case manager will go through the situation, identify whether you meet any of the exemptions, and explain your options clearly. There is no fee unless wages are recovered.
Under the FLSA, workers who recover unpaid overtime may also be entitled to an equal amount in liquidated damages, plus your attorney's fees. When the violation was done on purpose, you can recover up to 3 years according to federal law. Results vary based on the specific facts of each case.
Call (888) 992-2990 or submit your information online to find out where you stand.
Frequently Asked Questions About Unpaid Overtime
Any hour worked past 40 in a single workweek must be paid at one and a half times your regular rate. The workweek is a fixed seven-day period set by your employer. Hours do not carry over between workweeks and the workweek cannot change from to week to week in order to avoid paying workers overtime.
No. Federal law requires time-and-a-half for hours past 40. Paying a flat rate for all hours, including overtime hours, is a violation. The difference between what you received and what you should have received may be recoverable.
No. Federal law prohibits employers from retaliating against workers who file wage claims or participate in related proceedings. If an employer retaliates, by cutting hours, changing your schedule, or terminating your employment, that is a separate violation with its own consequences.
Waivers of FLSA rights are generally not enforceable. You cannot legally sign away your right to overtime pay. Arbitration agreements may affect how a claim is filed, but they do not eliminate your right to recover unpaid wages. An attorney can review your specific agreement and explain your options.
The review is free. Josephson Dunlap doesn't ask anyone to pay out of pocket to find out if they could be owed for their overtime. Anything you discuss with our legal team is confidential, and there's no obligation to do anything.
It may. Certain bonuses must be factored into your regular rate before overtime is calculated. If your employer paid you a bonus during a week when you worked overtime but did not adjust your overtime rate, your overtime may have been underpaid for that period.
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