Can some people in the same position get overtime pay when others cannot?

UPDATED: Jun 5, 2011

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Can some people in the same position get overtime pay when others cannot?

All supervisors in my company were switched to salary. However the owner’s son was a supervisor and was allowed to be compensated for overtime while the other supervisors were not. Is this legal?

Asked on June 5, 2011 under Employment Labor Law, New Jersey


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

For a definitive answer, you should consult with an attorney who can evaluate the situation in detail. As a general matter, from what you write, *possibly* no. Who is, and who is not, entitled to overtime is set by law and the enacting regulations; for example, the federal law on the subject is the Fair Labor Standards Act. IF the other supervisors' positions do not meet the criteria to be exempt from overtime, they must receive overtime; under the law, only those whose jobs are specifically exempt do not get overtime. (Go to the Dept. of Labor website to see the criteria to be exempt from overtime.) So if the other supervisors should receive overtime based on the nature of their jobs and responsibilities, they have to receive it.

On the other hand, a company does not generally have to pay employees fairly. So if the supervisors are correctly exempt from overtime, the company could choose to give one of them overtime voluntarily (i.e. they don't have to pay it to the son; they choose to), just as they could choose to give one supervisor a higher salary than the others, a bonus, etc. So the issue isn't whether the owner's son gets more than other supervisors; it's whether those supervisors are getting everything they should get, under the FLSA.

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 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.

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