Are you truly exempt from overtime pay?

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Some management or administrative employees are exempt from being paid overtime. But if your employer has classified you incorrectly, you may have a little extra cash coming your way.

Last year, the Department of Labor investigated 31,772 cases of alleged employer violations of fair labor standards and ordered $134 million in back wages paid to 219,195 employees found to have been misclassified.

That was a drop from the year 2000, when 37,432 investigations yielded a payout of $159 million to 256,117 employees.

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The 1938 Fair Labor Standards Act states that employers are required to pay covered employees not less than 1-1/2 times their regular rates of pay for all hours worked in excess of 40 in a workweek – unless the employees are otherwise classified as exempt.

The Act does not define "exempt" and "non-exempt," but the US Department of Labor is required to explain who is covered, and it does.

This includes a "salary and duties" test. If you earn less than $250 per week, chances are your job will not be designated as "administrative" no matter what title your employer assigns to you. So you would cash in for any overtime hours.

If your salary is higher, other considerations apply. For example, are you entitled to a fixed, predetermined sum regardless of the quality or quantity of work performed? That description could fit into an executive category, hence, no overtime pay. Some line employees might even be classified as administrators.

"The [federal] regulation makes it difficult for an employer to evade the act's minimum wage requirement by assigning the label of manager or assistant manager to workers who are more properly viewed as line employees," writes Robert Gregory, a Washington, D.C., attorney, in "Your Workplace Rights."

But suppose your employer tries to exempt you from the law's coverage on grounds that you are a manager, though in reality, you are not. What then?

According to Mr. Gregory, you are a manager if:

• Your primary duty consists of managing an enterprise, department, or division.

• You customarily direct the work of two or more employees.

• You regularly exercise discretionary powers and have the authority to order or influence the hiring and firing of employees.

Doctors, lawyers, teachers, and other professionals usually are exempted from the act on grounds that their work is largely intellectual, performed at their own discretion, and based on their own judgment.

But not always. The Labor Department has ruled that rocket engineers earning $90,000 a year were hourlies because they had to consult manuals and did not have individual discretion in performing their duties. They qualified for overtime.

"That's a stunning result when you have people with master's [degrees] and Ph.Ds in engineering who are sophisticated professionals hired on an exempt basis," says Ed Potter, president of the nonprofit Employment Policy Foundation, a Washington, D.C., research organization concerned with work issues.

"The problem is we have very complicated, subjective rules employers have to apply to determine who is going to be exempt and who is going to be non-exempt," Mr. Potter says. "We've been advocating clearer, bright-line rules. We don't like all this gray."

"The Depression-era workplace is no longer a reality," Potter says, when relatively few occupations could be called managerial or professional. "That has changed dramatically."

In the 1940s, only 1 in 10 workers was exempt from FLSA regulations, Potter notes, and 7 of 10 workers had no more than a high school diploma.

Congress enacted FLSA to reduce unemployment by requiring employers to pay extra for overtime hours worked. In theory, employers would avoid overtime by creating more jobs, Potter says.

Today, 70 percent of the workforce has a high school diploma or more, and more than 30 percent of employees are managers and professionals, Potter says. Many workers who style themselves as executives but aren't so classified don't want an hourly wage.

"People have told me, 'I'm not taking an hourly job,' " Potter said. "Kids go to college for professional accreditation, and if they're viewed as hourly, they consider it almost a sign of disrespect."

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