“Overtime for Salaried Employee?”

The FLSA sometimes provides overtime pay to suited, salaried employees

The FLSA could enable this suited, salaried, office worker to recover unpaid overtime for up to 3 yrs plus 3 more yrs in NY

The FLSA applies to everyone. If you are like most people you might think the guy in the suit would never be entitled to overtime pay; if salaried. Not true! Challenging but interesting factors and criteria to prove.

Wanting a salary, being paid a salary, or even agreeing to be paid that way does not mean an employee has waived overtime pay. Classifying someone as salaried does not automatically deny them overtime pay. We need to examine their duties. What do they do? How much discretion do they have? Do they exercise independent judgment, and if so, over what and how often?

An assistant manager for McDonald’s may be exempt from overtime pay under the FLSA. An employee earning twice or three times that much in Manhattan might not be exempt from overtime pay. The Manhattan employee may wear a suit and have a nice office and still be entitled to overtime pay.

Combining 3 years of unpaid overtime under the FLSA plus an additional 3 years under New York Labor Law could result in up to 6 years of unpaid overtime plus liquidated damages, which might double the amount. Plus attorney’s fees, interest, costs all paid by the employer.

The Department of Labor does a good job but can not keep up with how every employer compensates its workforce. Cases show that even the biggest companies, including financial institutions with thousands of employees, make errors.

Generally three classes of employees are exempt from overtime pay. One group is professional employees (doctors, accountants, lawyers who actually practice in their licensed fields) so even these persons might not be exempt. Jonas has recovered money for at least one professional was owed for unpaid overtime because their job duties did not require professional credentials.

Executives or highly paid employees who earn more than $100,000 are usually exempt but there are exceptions.

The third group are administratively exempt employees. Many fall under this category. Managers are usually exempt under this category but an employer can not simply call someone a manager and claim they are exempt from overtime pay because of a salaried compensation package. Do employees truly exercise discretion and independent judgment in their jobs? Do they make polices or hire and fire people?

If you think that you may have been denied overtime pay and improperly exempt or salaried call us to discuss.


“FLSA recovery not exclusive. Title VII, ADEA, others possible?”

If you are like most people you probably also think that a white male can not be discriminated under Title VII. Not true!

National origin and religious discrimination have applied to everyone including white males. Reverse discrimination has always been very difficult to prove but Title VII could hypothetically protect him under sex or color discrimination although unlikely. Our Second Circuit Court of Appeals has just interpreted Title VII to include gay employees which would include a white male.

Although minority employees are most likely to file claims under Title VII that law certainly includes white males like myself who have historically been considered privileged or in the majority.

All of these laws can become complex very quickly. Call us.

Following are a few examples of inappropriate comments or verbal communication:

  • “You look good for your age” is inappropriate. On its face it violates the Age Discrimination in Employment Act or ADEA.
  • “I need you to do x before or after you clock in” encourages an employee to suffer work without compensation. That violates the Fair Labor Standards Act (FLSA). This would apply to most, if not all, hourly, non-exempt employees.
  •  “Are you thinking about having kids” appears to violate Title VII. It might violate the Family Medical Leave Act or FMLA. It could also violate the Americans with Disabilities Act or ADA. With the right facts all three may apply.
  • “You have never been addicted to drugs or alcohol, have you?” is prohibited by the Americans with Disabilities Act or ADA. It also violates the Federal Rehabilitation Act or FRA.
  • “What kind of accent is that?” is a prima facie violation of the national origin clause of Title VII of the Civil Rights Act of 1964.
  • Alleging that an employee is not taking “another religious holiday” probably violates the religious freedom afforded by Title VII.
  • “You are an independent contractor” although we tell you what to do, how to do it, when to do it, provide the tools to do it, and know that you have no independent business or corporate name almost certainly violates the Department of Labor standards and pay practices under both federal and state laws.

Some employers think nothing of the above actions or statements. This can get them into trouble quickly. Every manager has a duty to monitor workplace communication. Non-compliance can lead to individual as well as corporate liability.

Call New York employment lawyer V. Jonas Urba at (914) 366-7366 to schedule a confidential consultation before you file charges unless you risk missing a filing deadline. Filing a discrimination charge may be the most important communication of all.  Missing any filing deadline is usually fatal. The sooner you consult with a New York employment lawyer the better. Harassment must be severe or pervasive.