Are protected veterans non-exempt employees?

UPDATED: Jan 23, 2011

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Are protected veterans non-exempt employees?

My husband has been an hourly employee, working 70 hours/week. He was told he now has to be salary, with no overtime. What is the law?

Asked on January 23, 2011 under Employment Labor Law, Pennsylvania


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

I'm not certain about the veteran aspect of your question.  But I can address the general exempt versus non-exempt issue. The fact is that employee misclassification for the purposes of avoiding overtime pay is a deception that many employers attempt to use.  Misclassificationpan occurs when an employer intentionally places a worker into an exempt category when if fact the employee is non-exempt.  It attempts to trick the worker into thinking that their job title makes them ineligible for overtime pay. However, federal law states that an employee's job duties, not their job title, is the main factor in determining who can receive overtime pay.  If an employee's duties will otherwise remain the same, and the only change is their non-exempt to exempt status, they have a claim here. Therefore, just because someone is a salaried doesn't necessarily mean that they are "exempt" from certain labor laws.

By way of background,  being paid on a salary is just part of the test for most forms of exemption, but it's not the only element.  It is possible to be salaried and to get overtime.  As a general rule exempt employees are: Management (they supervise other people); Professionals (their job requires advanced or technical training - engineers, accountants, lawyers, or the like); Administrators (they exercise considerable discretion in their position/duties). If the your husband's job meets these criteria then he an exempt employee and there is no upper limit in how many hours that he can be required to work for his base salary pay.  However, if these criteria do not describe his job duties, then he are a non-exempt employee and is entitled for overtime for any hours that he works over 40 per week. 

You need to contact your state's labor department or file a complaint with the US Department of Labor.  Possibly, just making your husband's employer aware that he knows his rights and can take action will make his employer re-think the change in status.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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