If 2 people have the same job but only 1 is eligible for overtiime, is that legal?

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If 2 people have the same job but only 1 is eligible for overtiime, is that legal?

The company I work for changed my job 2 years ago due to a division closing. I went from a manager position to a non-manager. I was left on salary and required to work 50 hours per week. My counterpart who holds the same job title is hourly and is still receiving overtime. Am I entitled to overtime? If I quit do I have any way of receiving this back pay?

Asked on May 14, 2012 under Employment Labor Law, Michigan

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

It is possible that it is legal. Job title is irrelevant for purposes of determining overtime eligibility; what matters principally are your duties and responsibilities. The default, so to speak, is to receive overtime--all employees are eligible for overtime unless they meet the criteria to be exempt. To be exempt, an employee must:

1) Be  paid on a salary basis--while being paid a salary is not enough by itself, to make you exempt, it is one requirement; otherwise exempt employees will still be eligible for overtime if they are paid on an hourly wage basis; and

2) Meet on of the tests for exemption; the most likely ones for you would be the "executive" test (which really should be called the managerial  test, since it applies to non-executive managers), the administrative test (for administrative staff who exercise a great deal of discretion), and/or the professional or computer professional tests (these tests apply to accountants, engineers, lawyers, high-level IT people, etc.).

You can find these tests on the federal Deptartment of Labor website, under "wages," then under "overtime." Look up the tests and apply them to your job responsibilities. If your job meets one or more tests and you are paid on a salary basis, you are ineligible for, or exempt from, overtime.

Getting back to the crux of you question: ignoring the job titles, the fact that you are paid a salary and your counterpart is paid hourly could itself be enough to allow him to receive overtime while you don't, if you both would otherwise be exempt due to the nature of your duties. It would be legal to pay him on an hourly basis and pay you salary, even if that works out to your detriment, since the law does not require employers to treat employees fairly or consistently. It is also possible that despite having the same job titles, that you have different duties that contribute to you being exempt.


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