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

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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

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 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.


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