Can a company have 2 employees who work in the same department, with identical job titles and responsibilities, but have 1 be exempt and the other non-exempt?

Both have similar salaries.

Asked on February 1, 2016 under Employment Labor Law, Florida

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

It is legal in the following way: companies are not *required* to make employees exempt: they can pay even employees who would qualify for the overtime exemption as non-exempt (e.g. let them get overtime). So IF the job responsibilities for the two employees would allow the company to treat both as exempt, the company could voluntarily choose to instead treat one as non-exempt, as long as the reason for the different in treatment is not based on discrimination against a protected category, the main ones of which are against an employee due to his/her race, sex, religion, age over 40 or disability. If the company is denying overtime to one employee based on one of these reasons, then the employee may have an employment discrimination claim he/she could bring to the federal EEOC or the state equal/civil rights agency, and/or file a lawsuit over.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.