Lyons Snyder & Collin. Trial Attorneys.


Employment Law: Exempt vs. Non-Exempt


If your employer improperly classifies you as a “non-exempt” employee you may be eligible for additional overtime and minimum wage compensation. Fort Lauderdale employment attorneys Philip M. Snyder and George W. Castrataro can advise you (free-of-charge) whether you can file a claim against your employer for your improper classification as an “exempt” employee. In all employment-related matters, the attorneys at Lyons, Snyder & Collin work on a contingency fee basis – you owe us nothing if we do not recover damages in your employment claim.

What is the significance?

Non-exempt employees are eligible for certain minimum wage and overtime provisions (under the Fair Labor Standards Act) whereas exempt employees (usually white-collar employees such as executives, administrators, professionals, computer software professionals, and outside sales) are not. This means that your employee designation could mean the difference between hundreds, if not thousands of dollars each year in minimum wage and overtime benefits. You can file a claim for minimum wage and/or overtime even if you were fired by your employer with (or without) cause.
The Fair Labor Standards Act (FLSA) specifies that non-exempt employees must be paid at least the current Federal minimum wage rate for the first 40 hours worked in a workweek and must receive an overtime rate of at least time and one-half their regular rate of pay for all hours worked over 40 in a workweek – no exceptions. How much money in overtime has your employer wrongfully withheld due to your misclassification.

A common example:

A bookkeeper in a small appliance delivery company works approximately 50 hours a week. The owner of the company, in an effort to cut costs, reclassifies the bookkeeper to “executive director of accounting”. The owner now believes that the bookkeeper, due to her new (“fancy”) title, is not eligible for overtime as “executive director” is an exempt position. The owner gives the bookkeeper a modest raise, makes her a “salaried employee” and has her sign a contract stating she is “waiving all overtime pay”. Is the employee still eligible for overtime pay?
Yes. Under the FLSA this classification is (most likely) improper and could subject the company to overtime violations.
An employee is classified based on his/her job duties, not job title; a “salaried” employee can still be eligible for overtime or minimum wage depending on their classification. Importantly, an employee cannot waive their right to receive overtime.
In our previous example, the owner is responsible for compensating his bookkeeper earning $20.00 per hour, $1,100.00 per week for each 50 hour workweek ($20.00 X 40 hours) + ($30.00 x 10 hours of overtime).

Common Overtime Violations


  1. An employee’s classification means nothing – an employee’s job duties are the determining factor. An employer cannot arbitrarily label an employee as “exempt” if their job duties do not warrant such a title.
  2. Each workweek stands alone. An employee’s pay frequency (weekly, bi-weekly, monthly) does not affect an employer’s obligation to comply with overtime benefits. An individual who works 50 hours (week #1) and 30 hours (weeks 2, 3 and 4) is still entitled to 10 hours of overtime pay for week #1. “Banking” time for future use is generally impermissible.
  3. An employee cannot waive out of overtime benefits, period.
  4. An employee can recover back overtime pay, even if they previously agreed to “straight time” or accepted cash.
  5. A salaried employee is not necessarily an exempt employee.
  6. An employer cannot take adverse action against employees who file complaints against them regarding minimum wage or overtime.
  7. An employer must pay overtime to employees regardless of whether the employer authorized the time in advance.
  8. Simply because you are titled as an “office manager” or “administrator” does not necessarily mean you are an exempt employee. An administrator’s primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers. Administrators exercise their discretion and independent judgment with respect to matters of significance. For example, an “office manager” of a medical office is likely a non-exempt employee (and eligible for overtime) if her doctors advise her regarding matters of significance (such as payroll, hiring and firing, major purchases, etc.).
  9. Many employees classified as “independent contractors” are actually non-exempt employees. The “20-factor” test is often used to determine a worker’s status and depends primarily on the extent to which the person receiving the services has the right to direct and control the service provider (i.e. employer). Such of the more pertinent factors in the “20-factor” test include: (1) Instructions (Independent Contractors set their own hours and perform the job as they deem appropriate); (2) Training (independent contractors receive no training from the purchaser of their services); (3) Hiring/Payroll (independent contractors hire and pay other workers at their discretion); (4) Hours (Independent Contractors come and go as they please); (5) Relationship (Independent Contractors are hired for one job – no continuous relationship); and (6) Tools and Materials (Independent Contractors provide their own tools and materials). Employees incorrectly titled as “independent contractors” are eligible for overtime benefits.

Fort Lauderdale employment attorneys Philip M. Snyder and George W. Castrataro are available 24 hours a day, 7 days a week to answer any employment-related question you may have, including whether you are should be classified as an exempt or non-exempt employee. Contact the Fort Lauderdale Employment Law Firm of Lyons, Snyder & Collin 24 hours a day, 7 days a week at 954.462.8035 for your free consultation.