Wage and Hour Violations: FLSA Exemptions/Misclassification

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UPDATED: Jul 15, 2021

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Written By: Jeffrey JohnsonUPDATED: Jul 15, 2021Fact Checked

Every job is classified one of two ways – exempt or non-exempt. That classification determines whether or not your are subject to the FLSA’s (Fair Labor Standards Act) requirement of receiving overtime. But, how can you tell if your job has been misclassified?

FLSA Exemptions/Misclassification

Many employers misclassify their employees as exempt from FLSA guidelines when, in fact, they are non-exemptemployees according to the law. Employees who are misclassified as exempt often fall into one of three commonly misapplied categories: executive, administrative or independent contractors.

Employers will typically classify an employee as an executive or as an administrative employee when their job dutieswouldn’t place them in that category. For example, in order to qualify for an executive or administrative exemption, you need to work a certain percentage of your time performing those specific duties than an executive or an administrative would work – and if you typically don’t spend 50 percent of your time performing those duties, then the employer is not entitled to exempt you from the FLSA.

Further, to qualify for the executive exemption, you need to supervise two or more employees, your primary duty has to be management related and you have to have input into hiring and firing. The administrative exemption is similar in that you need to be using independent judgment and working directly with management.

Misclassifying Employees as Independent Contractors

One of the most common misclassification issues concerns independent contractors. There are five factors that are most commonly considered in this evaluation:

  1. the degree of control exercised by the employer over the employee
  2. the worker’s opportunity for profit or loss and their investment in the business
  3. the degree of skill and independent initiative required to perform the work
  4. the permanence or duration of the working relationship
  5. the extent to which the work is an integral part of the employer’s business

Typically what happens is that employees are labeled or given job titles such as assistant manager or supervisor when, in fact, these assistant managers – or even managers and supervisors – are performing the same duties as those that they’re supervising for more than 50 percent of their day. That is a typical way that employers try to avoid paying overtime to these types of workers.

The same thing happens with respect to independent contractors. In fact, you see it all the time in construction work, janitorial work, cable TV installation and similar areas where workers are classified as independent contractors, but they really don’t have any degree of independence. They’re really employees who don’t have control or the right to control the work that’s being done. However, employers often classify them as independent contractors so that they can avoid the standards that are outlined under the FLSA and avoid paying overtime wages to these types of employees.

This goes for computer programmers as well. Typically these types of IT employees are not exempt from the FLSA because they don’t have the required degree or experience or the required exercise of discretion or judgment to qualify them as exempt.

Being a Manager Doesn’t Always Mean You’re Exempt

Wage and hour lawyers say that it’s an easy out for an employer to classify an employee as a “manager” and avoid paying overtime under the FLSA. It dupes the employee in the majority of instances into thinking that they’re not entitled to these overtime wages and it’s a common practice for these companies to give these job titles in order to save money.

Each FLSA misclassification situation needs to be evaluated individually – and while there are certainly guidelines and case law that provide information as to the merits of a particular classification, it is far from science. That’s why it’s important to seek the counsel of an experienced wage and hour attorney who not only understands the FLSA, but also your state law equivalents.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

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