“Overtime to Salaried Employee”

Unpaid overtime for salaried employees occurs even in large corporations. Although most do not make the mistake of mis-classifying employees some do. Mis-classification lawsuits are challenging. But with the right facts, they make good law.

Sometimes an employee who exercises almost no independent judgment nor has any policy making input nor hire/fire authority is paid salary. The employee might work long hours and have ways to recall hours worked. These facts can result in substantial recoveries when proven.


The Fair Labor Standards Act, federal law, and New York’s Labor Laws control how employees are paid. Wage and hour claims don’t usually affect high earners and professionals. But there are exceptions even for lawyers and physicians working in jobs which may not require licensure.

Wanting a salary, being paid a salary, or even agreeing to be paid that way does not mean that you waived overtime pay if you lack the professional credentials, skills, responsibilities or discretion and independent judgment associated with most salaried positions.

An improperly exempt, salaried employee might qualify for overtime pay

If you have been classified improperly as salaried you might still qualify for overtime pay. We examine your job description and job duties carefully. We find those claims challenging but rewarding and have experienced noted success with claims that have strong facts.

What do you do on your job daily? How much actual discretion do you actually have over what and how often do you exercise it? Do you have independent judgment on your job? It’s surprising how little discretion even some relatively highly paid employees actually exercise.

An assistant manager for McDonald’s may be exempt from overtime pay under the FLSA. Your salary might be twice what that assistant manager is paid but you may exercise less discretion and independent judgment on your job.

An employee wearing a three piece suit to work may actually have less discretion and independent judgment today than someone who performs manual labor. Your dress or job title do not determine your discretion on the job. 

How many years of unpaid overtime might you be able to recover?

Combining 3 years of unpaid overtime under the FLSA plus an additional 3 years under New York Labor Law could result in wage and hour claims being pursued for up to 6 years of unpaid overtime plus liquidated damages, which generally doubles the amount you are owed. 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.

Classes of exempt employees in general

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.

• 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. You might think that you qualify under this category. Managers are usually exempt under this category. But what you think or what your employer thinks you are matters very little. It’s what you do every day, your specific duties, discretion and independent judgment or lack thereof which determines whether you qualify for this exemption.

Some employers have attempted to prevent employees from sharing their compensation with each other. That’s a sign that males and females performing the same job duties may not be paid equally. Watch one of my Employment Law Reality Check videos below which discusses why all employees should be permitted to talk about how much they earn.


If you think that you may have been denied overtime pay and improperly exempt or salaried call some employment lawyers. Wage and hour claims can be lucrative if the facts are strong.

Call New York employment lawyer V. Jonas Urba at (212) 731-4776

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