How to determine if I’m owed back overtime wages?

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How to determine if I’m owed back overtime wages?

When I started my job 6 months ago I was a freelance employee. I was paid for every hour I worked and I always worked overtime but only received my hourly wage. Should I have been paid overtime? The business is rapidly expanding and my boss cannot afford to hire more staff. She recently put us on salary and classified us as professionals. Now we are exempt from receiving overtime pay. We are also required to work 42 hours a week. I am a cake decorator and I make $12 and hour. Is this legal?

Asked on April 19, 2012 under Employment Labor Law, New Jersey

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

A cake decorator is probably not exempt from overtime, though you need to check your job duties against the tests for exemption. Under the Fair Labor Standards Act and the regulations implementing it, overtime exemption requires two different things:

1) The employee must be paid on a salary basis; and also

2) The employee's job duties--not title; title is irrelevant--must meet one of several tests for exemption.

Even if you are paid on a salary basis, if your duties don't meet one of the exemption tests, you must be paid overtime whenever you work more than 40 hours in a week. The main tests which apply to most workers are the "executive" (which should be called the "managerial" test--it potentially applies to any manager, not just executives), the "professional," and the "administrative" tests. You can find these on the Department of Labor (DOL) website, under wages, then under overtime. Compare your job duties to the tests; if you don't meet them, you are owed back overtime and overtime going forward. In that instance, you could file a complaint with your state department of labor or else retain an attorney and bring you own legal action.


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