Worker Misclassification and Denial of Overtime or Minimum Wage in Tampa

To qualify for the FLSA’s executive exemption, you must meet all four parts of the following test:

• You must be compensated on a salary basis at a rate not less than $455 per week. (in 2017 this outdated base pay was nearly doubled, but is now tied up in courts)
• Your primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise.
• You must customarily and regularly direct the work of at least two or more full-time employees or their equivalent.
• You must have authority to hire or fire other employees, or your suggestions and recommendations as to hiring, firing, advancement, promotion or any other change of status of other employees must be given significant weight.

Employers often violate the FLSA when the hours the manager is supervising dip below 80 due to labor cost cutting or employees leaving. The employer must review and monitor the hours to avoid being liable to pay the manager overtime wages for failing this salary basis test.

If your employer has classified you as exempt from the FLSA’s overtime requirement under the executive exemption, but you do not meet all four requirements above, you may be misclassified and could be entitled to up to three years of unpaid overtime, plus an equal sum in punitive damages.

To qualify for the FLSA’s administrative exemption, you must meet all three parts of the following test:

• You must be compensated on a salary basis at a rate not less than $455 per week.
• Your primary duty must be the performance of office or non-manual work directly related to the management or general business operations of your employer or your employer’s customers.
• Your primary duty must include the exercise of discretion and independent judgment with respect to matters of significance.

The Federal Code of Regulations, the DOL and the FLSA all have numerous factors and analysis for determining if the position satisfies the Administrative exemption. However, despite all this, case law tells us that it’s never black and white. These matters are often subject to factual dispute and filled with a lot of grey areas.

Employers often willfully misclassify workers as exempt under the administrative exemption who are involved with routine, standardized and routine job functions, like inspectors, sales reps, and those involved with production of the company’s products or services rather than policy and the company’s profitability and true administration. Even human resources employees, “managers” of various levels and categories are routinely misclassified or just do not clearly fit within the exemption for various reasons.

If your primary responsibility or role is handling sales from within the company offices, such positions usually cannot satisfy the administrative exemption. Similarly, being an inspector, monitor or enforcer of company guidelines would likely fail to satisfy the administrative exemption.

If your position has been classified as exempt under the administrative exemption, you may be misclassified if your primary job duty does not have a certain level of discretion and judgment, and the ability to make decisions free from approval.

There are two types of professional exemptions under the FLSA: (1) the learned professional exemption; and (2) the creative professional exemption.

To qualify for the FLSA’s learned professional exemption, you must meet all four parts of the following test:

• You must be compensated on a salary basis at a rate not less than $455 per week.
• Your 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.
• The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

If your employer has classified you as exempt from the FLSA’s overtime requirement under the learned professional exemption, but you do not meet all four requirements above, you may be misclassified and could be entitled to up to three years of unpaid overtime, plus additional compensation.

To qualify for the FLSA’s creative professional exemption, you must meet both parts of the following test:

• You must be compensated on a salary basis at a rate not less than $455 per week.
• Your primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.

If your employer has classified you as exempt from the FLSA’s overtime requirement under the creative professional exemption, but you do not meet both requirements above, you may be misclassified and could be entitled to up to three years of unpaid overtime, plus additional compensation.

If you perform office or non-manual work and you are paid a total annual compensation of $100,000 or more, which must include at least $455 per week, you may be exempt from the FLSA’s overtime requirements if you customarily and regularly perform at least one of the duties of an exempt executive, administrative or professional employee, discussed above.

To qualify for the FLSA’s computer related exemption, you must meet all three parts of the following test:

• You must be compensated on a salary basis at a rate not less than $455 per week or be compensated on an hourly basis at a rate not less than $27.63 an hour.
• You must be employed as a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker in the computer field.
• Your primary duty must consist of at least one of the following: (1) the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications; (2) the design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; (3) the design, documentation, testing, creation or modification of computer programs related to machine operating systems; or (4) a combination of the aforementioned duties.

The usual misclassification by companies involve “technical support and “I.T” (information technology) employees, or help desk employees. Usually such positions fail this computer exemption.

Companies misclassify employees engaged in the manufacture or repair of computer hardware and related equipment, or in help desk positions, installers, and other software or cloud platform assistance. If you are engaged in these activities, and you do not otherwise qualify for a different FLSA exemption, you may be eligible for overtime wages for any hours worked over 40 in a work-week, including “on-call” time.

If your employer has classified you as exempt from the FLSA’s overtime requirement under a computer related exemption, you should consult a lawyer as you may be misclassified and could be entitled to up to three years of unpaid overtime, plus an equal sum in liquidated damages.

To qualify for the FLSA’s outside sales exemption, you must meet both parts of the following test:

• Your primary duty must be making sales or obtaining orders or contracts for services.
• You must be customarily and regularly engaged away from your employer’s place of business.

Unlike many other FLSA exemptions, you need not be paid a certain amount per week to qualify for the outside sales exemption.

Employers often misclassify employees as exempt from overtime pay under the outside sales exemption. They might pay these sales persons on a commissions basis, or a salary plus commissions basis and not pay them any overtime pay for their overtime hours worked (and at times, may deny them minimum wages for each workweek worked). If you are a salesperson who is primarily making sales from inside of the office, it is likely you do not fall under the outside sales exemption to the overtime laws.

If your employer has classified you as exempt from the FLSA’s overtime requirement under the outside sales exemption, but you do not meet both requirements above, you may be misclassified and could be entitled to up to three years of unpaid overtime, plus additional compensation.

To qualify for the FLSA’s retail or service establishment exemption, you must meet all three parts of the following test:

• You must be employed by a retail or service establishment. Retail and service establishments are defined as establishments 75% of whose annual dollar volume of sales of goods and/or services is not for resale and is recognized as retail sales or services in a particular industry.
• More than half of your total earnings must represent commissions.
• Your total compensation divided by the number of hours you work, or your regular hourly rate must be greater than one and one-half times the federal minimum wage.

If your employer has classified you as exempt from the FLSA’s overtime requirement under the retail or service establishment exemption, but you do not meet all three tests above, you may be misclassified and could be entitled to up to three years of unpaid overtime, plus additional wages.

Although this list is not conclusive, if you qualify for any of the following less common FLSA exemptions, you may not be eligible to receive overtime pay:

• You are employed by a seasonal amusement or recreational establishment.
• You are engaged in fishing operations.
• You deliver newspapers.
• You are a farm worker employed on a small farm.
• You are a casual babysitter.
• You are an auto, truck, trailer, farm implement, boat, or aircraft salesperson employed by a nonmanufacturing establishment that is primarily engaged in selling those items to ultimate purchasers.
• You are employed by a railroad or air carrier.
• You are a taxi driver.
• You are a domestic service worker and you reside at your employer’s residence.

Occasionally, employers may change workers’ exemption status from exempt to nonexempt. This means that employees, who previously did not receive overtime compensation, suddenly become eligible for overtime pay for hours worked moving forward. Employers may make this change for a number of reasons, such as to ensure they comply with wage and labor requirements.

If an employer reclassifies an employee, there is a chance that the employee was misclassified to begin with. If this is so, then the employee may be entitled to overtime compensation for overtime hours worked before the reclassification occurred. If your status changed to non-exempt, then you may be able to recover additional overtime compensation for work performed before the reclassification.

For example, reclassifications are occurring on a widespread basis within the mortgage industry, particularly with loan officers and underwriters. These employees may be entitled to up to three years of overtime pay for their overtime hours worked, plus additional compensation.