Proving Non-Exempt Employee Status

It is common for an employer to misclassify an employee as being exempt from the requirements of the Fair Labor Standards Act (FLSA) when, in fact, the employee is non-exempt. Non-exempt employees are entitled to receive overtime and to be paid at a rate of time and one-half their regular rate of pay. Accordingly, employers have an incentive to misclassify their employees because it saves the company money.

If you have been classified as exempt, do not assume that classification is correct. The majority of employees in the workforce are non-exempt. This means that the odds are in your favor that you actually have non-exempt employee status.

Why is it important to be classified correctly by your employer?

Non-exempt employees are entitled to receive overtime pay at a rate of 1.5 times their regular rate of pay for every hour worked over forty (40) hours in a workweek. Non-exempt employees are also required to be paid a minimum wage of at least $8.05 per hour in Florida. Exempt employees have almost no protections under the FLSA. This is why it’s so important that you be classified correctly.

What factors are used to determine employee exempt status?

Your job title has no bearing on whether you are exempt. Often times, an employer will give an employee a fancy title to give the appearance that the employee is exempt, when in fact, the employee is not. For most employees, there are tests to determine whether an employee is exempt from the requirements of the FLSA. While there are several tests depending on the type of work the employee performs, most employees fall under the Executive (Managerial), Administrative, and Professional exemptions.

(1) Salary Basis Test

An employee must be paid a minimum salary of $455 per week ($913 per week effective December 1, 2016). For the Highly Compensated Employees exemption, the employee must be paid the minimum salary per week as well as receive a minimum salary of $100,000 per year ($134,000.00 per year effective December 1, 2016).

It is important to remember that, effective December 1, 2016, the salary levels for the salary basis test will increase dramatically. The result is that millions of salaried employees who previously would not have been entitled to overtime pay will soon be classified as non-exempt and therefore will be entitled to overtime pay for all hours worked over 40 in a work week. If your salary is currently more than $455 per week, but less than $913 per work week and your employer does not change you to an hourly rate or increases your salary to $913 per week or more, your Tampa overtime lawyers will be available to discuss your options going forward.

(2) Job Duties Test

In addition to the salary test and the pay basis test, an employee must meet the job duties test in order to be an exempt employee. There are three typical categories of exempt job duties: (1) Executive, (2) Professional, and (3) Administrative.

• Executive.

To qualify for this exemption, all of the following criteria must be met:

• Primary duty is the management of the enterprise, or manages a customarily recognized department or subdivision of the enterprise;
• Customarily and regularly directs 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 employees or, the employee’s suggestions and recommendations as to the hiring and firing of employees must be given weight.

• Professional.

There are two types of professional exemptions: the Learned Professional and the Creative Professional. To qualify for the creative professional exemption, an employee’s primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor. To qualify for the learned professional exemption, the following test must be met:

• 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.

• Administrative.

To qualify for the Administrative exemption the following criteria must apply:

• The employee’s primary duty must be the performance of office or non-manual work;
• The work must be directly related to the management or the general business operations of the employer or the employer’s customers; and
• The employee’s primary duties include the exercise of discretion and independent judgment with matters of significance.

Other major categories of exemptions are: Outside Sales Exemption, Computer Employee Exemption, and the Highly Compensated Employee exemption. In addition, the FLSA lists a host of other professions and industries which are exempt from its coverage.

Contact Us

As you can see, determining whether your employer has classified you correctly is no easy task. It requires a thorough understanding of very complicated legal tests and a detailed analysis of how those tests apply to your particular job situation. This analysis requires the skill and experience of a Tampa wage and hour lawyer. If you have questions or concerns about your exempt or non-exempt employee status, contact us. You can reach Florin Gray by phone or email. We will respond promptly.