What to do if an employee was intentionally miscategorized as an exempt employee so as to save their employer from paying them overtime?

UPDATED: Nov 3, 2011

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What to do if an employee was intentionally miscategorized as an exempt employee so as to save their employer from paying them overtime?

My employer has taken 5 of us installers/laborers from non-exempt to exempt at the same rate of pay working 50 hours to keep from paying us overtime. From what I can tell we do not even come close to meeting the criteria for exempt employees. Is this legal?

Asked on November 3, 2011 under Employment Labor Law, Indiana


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

Answered 11 years ago | Contributor

The issue of whether someone is an exempt or non-exempt employee depends on the facts of their work relationship with the company; it has very little to do with what an employer labels a worker. The definition of "exempt" and "non-exempt" has much more to do with an employee's level of responsibility or their status as a professional.  

The U.S. Department of Labor specifically designates certain classes of workers as exempt, including executives, administrative personnel, outside salespeople, highly skilled computer-related employees and licensed professionals (doctors, lawyers, architects, engineers, certified public accountants, etc). In addition, managers who hire and fire employees and who spend less than half their time performing the same duties as their employees are typically also exempt employees. In general, the more responsibility and independence or discretion an employee has, the more likely the employee is to be considered exempt. Installers/laborers would not appear to qualify.

Employers who have violated any provisions of the Fair Labor Standards Act ("FLSA") are subject to civil penalties; this includes employers who have miscategorized employees as exempt in order to avoid paying them overtime. The employee can file a claim against the offending employer with the US Department of Labor (the wage and hour division in their state), their state's labor department and/or consult directly with an employment law attorney in their area.

In the meantime here is a site that you may find to be of help: http://www.dol.gov/whd/flsa/

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 AttorneyPages.com 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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