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Misclassification of Employees

Ohio and FLSA Misclassification Attorneys

In general, if an employee works more than forty hours in a week, they are entitled to overtime compensation at one and a half times their normal hourly rate. When this compensation is denied to an employee, the employee may be entitled to receive their unpaid wages, liquidated damages, and their attorney’s fees.


Should I be paid overtime even if I am paid a salary?

It depends on your primary job duties. Under Ohio and federal law (the FLSA), everyone is entitled to overtime pay (time and a half for any hours worked over 40 in a workweek) unless they are specifically exempted under the law. Because the Fair Labor Standards Act (FLSA) contains a number of exemptions to overtime compensation, employees and employers alike are often confused about who is entitled to overtime and who is not. Employers often misclassify employees as “exempt” because they are paid a salary, when, in fact, the employees are entitled to overtime compensation. Employers also often fail to properly classify employees altogether.


Employers cannot unilaterally tell you that your status is exempt or nonexempt. Whether you are exempt (not entitled to overtime) or nonexempt (entitled to overtime and other wages) depends on your job duties. For most employees, whether you are exempt or nonexempt depends on:

  1. how much you paid;
  2. how you are paid, and;
  3. he type of work you primarily perform (your job duties)

With few exceptions, to be an exempt employee under the FLSA, the employee must:

  1. be paid at least $684 per week (exclusive of board, lodging, or other facilities);
  2. be paid on a salary basis (i.e. your compensation cannot be reduced depending on the number of hours you work), and;
  3. perform exempt job duties.


With respect to the first two elements (how much you are paid and how you are paid) they are relatively easy to meet.  However, the third element – the type of work you primarily perform – presents complications. Specifically, an employee who meets the salary level and salary basis test is exempt only if he or she performs exempt job duties. Exempt job duties could fall under three common exemption categories, such as “executive,” “professional,” and “administrative” job duties, but only if the employee actually performs exempt job duties. You can find the exemptions under the FLSA here. Because these exemptions are fact-intensive and involve technical interpretations of federal regulations, it is important to speak with an attorney who handles these issues.


To that end, job titles or position descriptions are not useful in this determination. Rather, the focus needs to be on what you primarily do on a daily basis. For example, a secretary is still a secretary even if he or she is called an “administrative assistant” or other title. The same analysis is true even if an employee is paid on a salary basis. If the employee’s job fails to satisfy all of the duties requirements of the desired exemption, the employee will not be exempt and will be entitled to overtime for all hours worked in excess of 40 in a work week. It is the actual job tasks that must be evaluated, along with how the particular job tasks fit into the employer’s overall operations.


Common Overtime Violations

As indicated above, under Ohio and Federal law, everyone is entitled to overtime pay (time and a half for any hours worked over 40 in a workweek) unless they are specifically exempted under the law.


Not Paying Salaried Employees Overtime

This violation is a common myth among employees who think that just because they are paid a salary, they should not be paid overtime. Contrary to this myth, it is simply not true. Being paid a salary is solely one of the requirements mentioned above for determining whether someone is exempt from overtime. If you are paid a salary and work over 40 hours per week, the focus must still remain on your job responsibilities. If you have questions about whether you are exempt or nonexempt, contact an Ohio and FLSA misclassification attorney today to discuss in more detail.


Not Paying Overtime Because it is against Company Policy

In the event a company has a policy indicating that no employee is to work overtime, the policy is legal on its face. However, what happens when employees happen to work overtime due to work demands? Under federal and Ohio law, the employees must still be paid overtime for all hours worked in excess of forty (40) per week.


In other words, if a non-exempt employee works 45 hours in a week and the employer has reason to know about it, the employer must pay the employee at time and a half for each hour over 40. The employer may not deny paying simply because the employee “broke company policy.”


Some employers tell their employees that it is “illegal” for them to stay clocked in for more than 40 hours. That is usually accompanied by a request to perform off-the-clock-work so that the employee is not “illegally” clocked in. This tactic is nothing more than another way to squeeze unpaid work out of employees. If you are asked to work, you should stay clocked in. The only illegal thing about this common situation is your employer not paying you for all hours worked. Additionally, if you are disciplined or terminated for staying clocked in even though you were asked not to, you would likely have a claim of retaliation as well.


If you believe you have been misclassified or have any questions about whether you are entitled to unpaid wages and overtime wages, please contact an contact a Columbus or Toledo Ohio and FLSA misclassification attorney at Bryant Legal, LLC to discuss whether you are entitled to unpaid wages.

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