How to tell my employer that I am an exempt salaried employee and by law I am due overtime?

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How to tell my employer that I am an exempt salaried employee and by law I am due overtime?

My employer hires field internet technician/installers for $400 per week; it doesn’t pay overtime. It recently made operation changes that led to average of 10-12 hour days when before a day averaged 7-9 hours. I don’t mind working but I want fair compensation.

Asked on May 4, 2012 under Employment Labor Law, Missouri

Answers:

Archibald J Thomas / Law Offices of Archibald J. Thomas, III, P.A. - Employee Rights Lawyers

Answered 9 years ago | Contributor

As an installer, depending on your exact duties and whether you are considered an employee as opposed to an independent contractor, you may be entitled to overtime compensation.  You should demand payment if you are truly non-exempt by sending a letter or an email.  Keep in mind that the law protects you against retaliation for complaining about not being paid overtime.  If you are retailiated against for requesting payment, you can then assert a retaliation claim as well.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

There is some confusion in your question--if you are an exempt salaried employee, you are not entitled to overtime.

All employees are entitled to overtime under federal law (the Fair Labor Standards Act, or FLSA, and the regulations implementing it) unless they are exempt from overtime: getting overtime is the default. Overtime is based on working more than 40 hours per week (it has nothing to do with how many hours are worked in any one day; all that matters is that more than 40 hours are worked over a workweek). If more than 40 hours are worked, all hours over 40 should be at overtime, or time and a half.

To be exempt, first, you must be paid on a salary, not hourly basis. Second, you must specifically meet the criteria for one or another of the tests for exemption. You can find these tests on the U.S. Department of Labor's website, under "wages." The main tests for most purposes are the "administrative," "professional," and "executive" (which really should be called the "managerial" test--it doesn't apply only to executives) tests. If your job duties or responsibilities meet one of these tests and you're paid a salary, you are not eligible for overtime; but if your job does not meet one of those tests, you are owed overtime when you work more than 40 hours in a week.

While you need to compare you job to the tests, as a general matter, most techician/installers would not be exempt and should get overtime.

If you are owed overtime, you could show your employer the relevant law; if he disagrees and/or won't pay overtime, you could sue him for any overtime you are owed, and/or file a complaint with your state department of labor.


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