What are the statutes of limitation for overtime exemption?
Were you misclassified by your employer as exempt from overtime pay? Let’s examine some of the circumstances under which a worker can be understood to be “misclassified as exempt” from the protections of FLSA.
Generally speaking, workers are entitled to pay of one and one-half their regular hourly rate of pay for all hours worked that are in excess of 40 per workweek – unless you qualify for an FLSA exemption. Any employee who has worked more than 40 hours per work week, and who did not receive overtime pay, and who does not qualify for these exemptions, may have been misclassified.
When this happens, the FLSA offers a remedy, and protection, to employees who were misclassified and not paid all wages owed to them. In fact, anyone misclassified as exempt may be entitled to unpaid overtime compensation during the previous three years. Here are some common types of exemptions.
This is one of the most commonly applied exemptions, and, as a result, is also one of the most commonly misapplied exemptions. For an employer to utilize this exemption, you must be primarily involved in some aspect of managing the enterprise, and must manage at least two full-time employees (or their equivalent). Last, you typically must have at least some authority to hire and fire employees under you.
To qualify for FLSA exemption, you must be directly involved in office work related to your employer’s core business operations, and must also have some discretion or judgment regarding important matters. It is not enough to merely be engaged in administrative or non-manual tasks. They must be related to actually managing the company’s operations.
This category is actually made up of two separate categories, the “learned professional” exemption and the “creative professional” exemption. As to the learned professional exemption, the job duties must require advanced knowledge, primarily intellectual in nature, which can only be acquired through an extended period of study or training. The creative professional exemption is only available for employers to utilize as to employees who work in a field requiring particular imagination, originality or talent in a recognized creative field.
To qualify for this type of exemption, the worker must be a computer systems analyst, software programmer or engineer, or other similarly skilled information technology worker. Employers commonly abuse this exemption, including when applying it to lesser-skilled, computer-based employees. Help-desk representatives are a good example of individuals commonly misclassified under this exemption. This type of exemption is intended only for high-level computer technicians and programmers.
Outside Sales Exemption
This exemption is designed for workers whose primary job is the transaction of sales, and who spend most of their time in the field away from the employer’s office or job site. Unlike most of the other FLSA exemptions, there is no minimum weekly salary associated with this exemption.
Misclassification under the outside sales exemption usually results from employers paying salespersons utilizing a methodology normally associate with sales work. Examples can include a: straight commission on sales made, or salary plus commission, without overtime. Employers sometimes even deny sales workers federal minimum wages for hours worked without the closing of a sale.
There are several other occupations that are often exempt from FLSA, including retail service workers, fishermen, newspaper deliverers, taxi drivers, and others. And while many of these type of employees may not be entitled to overtime, they are typically entitled to minimum wages, a critical fact employers often abuse when applying some of these exemptions. Consult an attorney with specific questions related to your situation.
Have You Been Misclassified As Overtime Exempt?
Employers sometimes change the exemption status of a worker from exempt to nonexempt, and this is often done as part of an effort to become compliant with the FLSA and Florida law. In this instance, workers should consider whether this may possibly be the reason, and, if so, whether they had been misclassified as exempt prior to the change.
If so, the worker may be entitled to recover up to three years of back overtime pay.
Remember, if you believe that your employer may have misclassified you as exempt from FLSA’s overtime requirement, you may be entitled to up to three years of back overtime pay. Contact an experienced employee rights attorney to get a full overview of your situation and find out if you qualify for back pay. Wenzel Fenton Cabassa, P.A., serves Florida residents out of offices in Orlando and Tampa.