Exempt or Non-exempt?
Unfortunately, misclassifying an employee can be an expensive proposition. Most full-time employees exceeding any work performed over 40 hours in a week are entitled to time and a half for that excess time. Employers making the mistake of misclassification often find themselves defending lawsuits filed by contingency fee plaintiff’s lawyers.
Exemptions – White Collar
The Fair Labor Standards Act (“FLSA”) is a federal law that establishes exemptions for certain employees such as bona fide executive, administrative, professional, and outside sales. Although title is not determinative here. The first qualification for the exemption is salary-based pay of at least $455 per week. Salary meaning the employee gets paid that amount irrespective of the actual hours worked.
FLSA applies to the following employers:
- Federal, state or local government agencies
- Hospitals or those businesses engaged in certain health care fields.
- Schools and Colleges
- Companies and organizations with an annual sales or receipts of $500,000 or more. It doesn't matter if these businesses are not-for-profit or for profit.
Record Keeping is Essential
An employee can testify as to the overtime they worked. It can be an estimate and the employee is not required to prove the actual number of hours of overtime worked. An employer, however, will need detailed records to disprove the employee's figures.
Damages, Attorney's Fees, and Costs
An employee that is successful in suing an employer for wage and hour violations under FLSA is entitled to the overtime pay they are entitled to, liquidated damages, as well as attorney's fees and costs. These numbers can add up quickly!
Statute of Limitations
Typically, a case must be brought within two years. Unless an employee can prove that the employer is willfully violating the FLSA, then the action can be extended another year.