How to recognize  employee misclassification for overtime

Overtime misclassification can occur when your employer erroneously classifies you as exempt for overtime. How can this happen? There are various ways in which it occurs.

Salaried employee misclassification

Paying employees by salary does not automatically make them exempt from overtime pay. Other factors must also exist. The salary must meet the following requirements: a minimum of $684 per week or $35,568 per year. In addition to salaried work, the employee must meet job duty tests for either executive, administrative or professional exemptions.

Basing exemption on position titles

The employee’s daily duties and responsibilities must fit the title. An employer cannot assign a title and then have the employee’s actual work fail to meet the title’s responsibilities.

Automatically classifying administrative employees as exempt

Again, the job description does not make employees exempt unless they passed the test of doing administrative tasks. The administrative function must involve the task of exercising judgment over significant matters. It should involve implementing management or policies for business operation. In addition, the employee would have the authority to deviate from company policy without prior approval. Their decisions would have substantial financial impact.

Misclassification as executives

The employee must exercise executive functions. This would include directing the work of two or more full-time employees. Executives also would have the authority to hire and fire employees.

Misclassification as computer employees

Computer employee classification applies to employees who engage in the following types of activities:

  • Systems analysis techniques and procedures
  • Determining hardware, software or system functional specifications
  • Designing, developing, documenting, analyzing, creating, testing or modifying computer systems or programs

The fact that employees use a computer for work does not meet the computer classification. Help desk technicians or employees who repair or service computers would not meet the computer classification requirements.

(Reference: JD Supra)

Are you having problems with overtime misclassification?

Find out how we can help. For many years, the Law Office of Peter A. Romero has dealt successfully with all types of overtime payment issues. We provide representation to clients throughout NYC, including in Queens, Brooklyn, The Bronx and Harlem/Upper Manhattan. Call us at (631) 257-5588 or contact us online to schedule an appointment.