The Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL) protect workers and ensure that they are paid proper wages. Most workers are entitled to overtime pay, as well as the minimum wage. Some workers, however, are exempt from the protections of the FLSA and the NYLL. However, employers often wrongly claim that workers are exempt (“misclassify” them) to get around their legal obligations to pay minimum wage and overtime.

Examples of employees who are not required to be paid overtime or the minimum wage include:

• Management employees whose work is directly related to the actual management of the business, like managers, directors and other executives who are empowered to make leadership decisions and supervise two or more people;

• Administrators whose work is directly related to the general administration of the business, who perform non-manual office work, and who exercise discretion and judgment in matters of significant importance, like administrators, accountants and human resources personnel;

• Professionals who have specialized academic training that they utilize in their jobs, like lawyers, dentists, architects and doctors;

• Computer specialists, such as network administrators and Internet and database administrators;

• Salespeople who work in the field, outside the main place of business, and are paid commissions;

• People in a recognized creative or artistic field, who have artistic discretion over the product of their work.

Exemptions to the federal and state labor laws are very narrow, meaning that a worker must fit clearly into a specific category in order to be considered exempt. Employers, however, tend to try and get out of their labor law obligations by squeezing people into exemptions where they don’t fit.

For example, many people who perform routine office work are misclassified as exempt “administrative” employees, because we think of “administrative” work as being similar to the work of assistants or paralegals. However, most assistants and paralegals are not exempt, and are thus entitled to overtime pay. Similarly, some employers will try to classify any employee working in a creative industry as an “artist,” even though the employee is essentially painting by numbers and has no discretion over the artistic direction of their work.  Also, just because an employees are paid a weekly salary, doesn’t mean that they are not exempt from receiving overtime pay.  It is the employees’ job duties that matter.  

The determination of whether any given individual is exempt or entitled to overtime protection depends heavily on the specific facts of their situation. The lawyers at Menken Simpson & Rozger have extensive experience with the FLSA and NYLL exemptions, and can help you figure out whether you have been misclassified. If you have been inappropriately classified as an exempt rather than nonexempt employee, we can help you recoup your back pay and overtime wages.