As a full time employee, why wasI told thatI was exempt from receiving over-time?

UPDATED: Oct 1, 2010

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As a full time employee, why wasI told thatI was exempt from receiving over-time?

They offered us comp-time instead. I worked as a digital artist. I know it is not legal to do this (so I read), but why are professional digital artist considered exempt? Or is this even correct? I no longer work for that company but want to know for sure.

Asked on October 1, 2010 under Employment Labor Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

Many full time staff do not receive overtime. The issue is whether they fit one of the requirements for an exemption; if a staff member does, the company does not have to offer time. The most likely exemption for a "professional digital artist" is the creative professional exemption. The requirements to be exempt from overtime per this exemption are:

  1. You are paid on a salary (e.g. not hourly or project-based) basis and receive at least $455/week
  2. Your primary duty (the most important part of your job) must be work involving "invention, imagination, orginality, or talent in a recognized field of artistic or creative endeveor."

(Go to the Dept. of Labor website for more detail and examples; look under "wages" and "overtime.")

If you meet this test, your company does not need to give you anything extra for working more than 40 hours in a week. If they choose to give you comp time, that's your company being generous.

If you *don't* meet the exemption, you are correct--they cannot give you comp time, but must instead pay overtime.

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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