It is quite common for employers to misclassify their employees. Whether this is intentional or not, it makes a big difference to an employee who could be missing out on overtime pay.
Exempt vs. Non-Exempt Employees
First, it’s important to understand the difference between an exempt and non-exempt employee.
Exempt Employees: Exempt employees are employees that are exempt from state and federal employment laws that cover things like minimum wage, overtime pay, work hours, and rest and meal breaks. Determining whether an employee is an exempt employee generally depends on three things,
1) Their duties – exempt employees must primarily perform executive, administrative, or other professional duties.
2) Their salary – exempt employees are paid a salary rather than an hourly wage, and that salary needs to be at least two times the state minimum wage.
3) Their judgment – exempt employees can use their own discretion and independent judgment when performing their work duties.
Non-Exempt Employees: Non-exempt employees are other workers that do not meet the criteria to be classified as exempt. These employees have specific rights that are protected under the law. Non-exempt employees have a right to
· Overtime Pay
· Rest and Meal Breaks
· Minimum Wage
Frequently Misclassified Jobs
The distinction between these two classifications is important. While it can be tricky to determine whether an employee should be classified as exempt or non-exempt, it matters, especially to the employee. If an employee is misclassified as an exempt employee, that employee will miss out on overtime pay and rights that employee deserves.
Some commonly misclassified jobs include:
· Office and Store Managers: Many times employers look at the title of their employees and assume they are exempt simply because the employee has the title manager. However, if the employee does not have decision-making authority and does not perform executive or administrative duties, that employee should be classified as non-exempt.
· Construction workers: When an employee’s primary duties involve manual labor, the employee should be classified as a non-exempt worker.
· Inside Salesperson: When a salesperson works primarily on-site, selling over the phone and gets paid an hourly wage, this salesperson should be classified as non-exempt. This classification can be tricky because an outside salesperson, who is primarily conducting sales on the road, can be classified as exempt.
· Computer Technician: There is a computer employee exemption for certain types of computer employees. However, this exemption is based on the type of work the computer employee is performing. The more advanced the work, such as programming or development and design of computer systems, the more likely the employee is exempt. However, computer employees that work on manufacturing or computer repairs are generally non-exempt. What matters is the type of work the employee performs with computers.
These are just a few jobs that are often misclassified. The reasons why a job is misclassified varies–it can be because employers look only at job title and pay without considering employees’ duties, autonomy, and type of work performed. Other times, the employer intentionally misclassified employees as exempt to avoid paying for overtime or breaks.
If you have been misclassified as an exempt employee, chances are you are missing out on overtime pay that you deserve. As an employee, you have a right to bring a claim against your employer to be compensated for your extra work. An experienced employment law attorney can assist you with this type of claim. Every employee deserves to be paid for all the work they do–if an employee is non-exempt, that means overtime pay too. You should not be short-changed simply because of misclassification by your employer.
