Misclassified as Salaried Employee

Misclassified as Salaried Employee

Helping Misclassification Employees As Exempt Versus Non-exempt in Florida, Illinois, New York, New Mexico & Colorado

Exempt employees are, by law, employees not entitled to receive overtime pay when they work more than 40 hours in a workweek. Whether or not you are an exempt employee can be very confusing. However, your job title or job description does not control whether you are exempt. Likewise, whether you are paid on a salary or hourly basis does not control whether you are exempt. The issue of whether you are exempt depends on a number of factors. The key consideration in determining whether you are entitled to receive overtime pay comes down to what you actually do at your job on a daily basis.

Assistant Managers, Shift Supervisors, Shift Leads, Working Leads

Many employers use the above job titles and pay a salary to “lead” employees to mislead these employees into thinking they are not entitled to receive overtime pay. However, employees with these job titles who do not regularly supervise two or more full time employees may be eligible for overtime pay. The sporadic or occasional supervision of other employees is insufficient to qualify as an exempt employee. 

Mortgage Industry Employees

It is very common in the mortgage industry for employers to underpay their employees who work long hours. Banks and mortgage companies regularly misclassify their loan officers, mortgage originators, and other like jobs as exempt from overtime pay and minimum wage. Generally speaking, mortgage loan officers are entitled to receive minimum wage and overtime pay when their primary job duty is selling loans from inside an office. This is true regardless of whether your employer pays you on a salary, draw plus commissions, or commission only basis. This also applies to underwriters who are often misclassified as exempt employees. 

Recruiters

Staffing recruiters often work far more than 40 hours in a workweek but many of them are not paid overtime as required under the FLSA. Many recruiters are required to comply with company “playbooks” in which they are expected to make certain calls and visits and attend a specific number of networking events. These recruiters do not set policies for the companies but are expected to operate within the guidelines establish for them. Recruiters do not supervise candidates in their performance of services for clients nor do they make staffing recommendations to clients.

Office Workers

Many employers will commonly misclassify office and administrative employees as exempt. In many situations, this is illegal. An office worker can only be classified as exempt if they are paid on a salary basis of more than $684 per week and if they have independent decisions making authority on behalf of the company on matters of significance. 

Training Periods

Even if an employee may be otherwise exempt, this does not necessarily apply to training periods when the employee is initially hired. For example, instructors who are required to complete a training period are not exempt from the overtime provisions of the FLSA during the training period if the instructor is not primarily engaged in teaching or instructing during training. In this situation the instructor trainee must be paid overtime wages when working over 40 hours.

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