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My salary is much less than $100,000. Does that mean I am being cheated?
Did you agree to it or did they sneak it up on you? If you're getting paid a different number than what you and your employer agreed to, then you are being cheated.
For the most part, whether an employee is exempt depends on two things: 1) the nature of the employee's job; and 2) the way the employee is paid. To avoid paying OT, an employer must prove BOTH that the employee's job and pay method are sufficient to exempt the employee from OT.
One category of jobs that can be exempt from OT is called the "professional" category. Licensed engineers usually will fall within this category. They keys are that the job requires advanced' academic training and the exercise of independent judgment.
Those who hold "professional" jobs will be exempt if they are paid on a salary basis. A salary is paid when the employer and the employee agree that the wages will be for a certain amount paid over the pay period regardless of how many or how few hours are worked.. Employers often make the mistake of requiring an employee to work certain "minimum hours". Then deduct pay or require the employee to make up the hours in a subsequent work week when the minimum is not met. By setting a minimum number of hours required to work, the employer is not paying a salary as "salary" is defined in the FLSA. In which case, even the professional would be entitled to OT.
Wage and hour law violations are perhaps the most common violations of law in the workplace. They can also be very costly for employers to defend and lucrative for lawyers who represent the employees. If you think you are being underpaid, you should talk to a lawyer who has experience with wage and hour claims. Most lawyers will talk to you at first for little or no initial fee. But before you start working with a lawyer, do your homework to make sure they have experience with these claims. The reason so many employers violate wage and hour laws is because they are tricky. The legal procedures for protecting the employees are even trickier. For an experienced wage and hour lawyer, however, they will not be a problem.
As an employer, I will state that there is NO ambiguity in Exempt versus Non-Exempt. There are only ignoring the regulations. Too many employers manipulate the system to their advantage but are still operating in violation. There are also way too many employees who are ignorant of the regulations and allow themselves to be miss classified or who willingly go along with the manipulation for their own reasoning.
Although there can be some confusion by an employer, there is no excuse for misclassification since employers have multiple resources they can use to get it right.
Well that part is certainly interesting. I suppose only my employer and/or the Dept. of Labor would truly know if I am exempt then, though it sounds as if I am.
What is your job Odonsky?
You make more than the minimum salary to be considered exempt (salary less than approx. 24k a year you are automatically considered nonexempt)
Jobs that are executive, professional and finally exempt level administrative jobs are typically exempt.
Professional = meaning "learned professions" aka lawyer, dentist, nurses, doctor, etc. Usually jobs with a license for the most part although there can be "professional artist" jobs like a pro violinist.
Executives--are just what they sound like. The folks who strategically steer the ship for the most part-- they make the decisions, they have span of control. It would NOT be your assistant store manager at some shoe store.
Administrative professional is your "dark hole". A lot of companies mistakenly put people in this category. FLSA says to be an admin executive job your duties are:
a) office or nonmanual work, which is
(b) directly related to management or general business operations of the employer or the employer's customers, and
(c) a primary component of which involves the exercise of independent judgment and discretion about
(d) matters of significance.
People need to educate themselves on overtime laws. No employers or prospective employers are going to do that. Until workers find out for themselves about overtime laws, they will forever be exploited.
I don't know about others but I always find out somewhere during the hiring process if they pay overtime or not. The interviewing process is really the time and place to ask about this, not after you're hired. I am not going to tell the interviewers what to do, but I will walk away knowing whether I will work there or not. Otherwise you will be working overtime as often as they tell you, and probably for free. Comp time? Doesn't quite "compensate" for it. Comp time doesn't pay your bills.
I know you are one of the regular posters who tends to think HR and companies are corrupt at the core, etc. There are some jobs that are VERY obvious as to their FLSA status. The administrative exempt level can be typically very subjective and difficult to come to terms with.
At my company a few years ago, a certain job I was in was exempt. Based on all of my "activities" it definitely was exempt. However, the job title was a title and HR classification and although there was a standard body of work that was supposed to be done some other business groups used the job differently. Someone complained about OT in some group and sought to seek a lawsuit, they hired an attorney the attorney poached other employees (one of my friends was also contacted). The lawsuit never got any traction, but the company carte blanche made that one job title at that level (my employer goes from Associate, to Analyst, to Sr. Analyst, to Consultant, to Director, etc) completely nonexempt (and anything underneath that).
You can get into a lot of trouble if you are exempt but found to be nonexempt, but you cant get in trouble for being nonexempt.
In court, a job could seem completely exempt in one arena and then nonexempt with another group of people.
If you are a licensed civil engineer and your pay exceeds a certain level you are exempt. It has been too many years since I have worked with the FLSA but read the eCFR — Code of Federal Regulations of the Fair Labor Standards Act.
Like this poster-- civil engineer falls into professional exemption-- aka a learned profession that requires a license (generally speaking)
My salary is much less than $100,000. Does that mean I am being cheated?
No.
It means you are paid much less than 100k.
If you make 100k and above you are generally EXEMPT.
Just because you make say 65k does not mean that your job is nonexempt. If you make more than 23600.00 a year then you can be considered either exempt or nonexempt based on your occupation.
My salary is much less than $100,000. Does that mean I am being cheated?
I think you misread that part (assuming you interpreted as 100K being the only criteria for being exempt). I think what that is saying is that if you make 100K annually - highly compensated, you are exempt without looking at any other details. If you are below 100K, there may be other factors to "ensure" you are exempt -
Last sentence of B2 (describing a commissioned employee) -
Quote:
....If the employer fails to make such a payment, the employee does not qualify as a highly compensated employee, but may still qualify as exempt under subparts B, C or D of this part.
As an average Joe (not lawyer or HR) looking at this - I think if you are paid more than $23.6K a year as a 'professional', you will likely be exempt from overtime. See: eCFR — Code of Federal Regulations
In your case - I would say that a civil engineer is exempt (unless you're taking in less than $23.6K...or your job falls under section D ).
He said he is in a civil engineering field. He didn't say he was a licensed engineer.
Exempt versus non exempt is not so clear cut as some think. The last company I worked for had a quality control & vendor compliance position in its distribution centers. The job had been exempt for two decades, since its creation. After a complaint to the DOL from someone in that role who was sore about having to work Saturdays, there was a major investigation. Although quality control is spelled out in the law, the DOL investigator "felt" that the role should be nonexempt, as they reported to a supervisor level employee, and had no direct reports of their own.
Everyone received back OT pay based on some calculation or other. I even got it, since I had in the past been in that role, even though I was supervision by the time the change was made.
So to the OP, this is worth investigation and a consultation with an attorney. Make certain that your role is being administered the same in your company as in other companies.
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