What you need to know about overtime pay: exemptions

As an employee, you may sometimes be asked to work longer than 40 hours in a week. As a result, you may wonder whether you are entitled to overtime for these extra hours. The answer to this question depends largely on whether you are considered exempt or nonexempt under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL).

What are nonexempt employees?

Nonexempt employees are entitled to receive overtime pay for any work performed beyond 40 hours a week. Under the FLSA and NYLL, as a nonexempt employee, you are entitled to time and one-half your regular rate of pay per hour of overtime. With some limited exceptions, most workers that are customarily paid an hourly wage are considered to be nonexempt under the FLSA and NYLL.

What are exempt employees?

The FLSA’s and NYLL’s overtime protections do not apply to exempt employees. Therefore, if you are an exempt employee, you generally are not entitled to overtime pay. So, what types of employees are considered to be exempt? In general, if your job meets the following criteria, you are likely an exempt employee:

• You are paid on a salary basis;

• Your job consists of performing certain “white collar” (i.e. not manual labor) duties. The three primary classifications of these duties are executive, administrative and professional duties (what these duties consist of will be discussed later); and

• Your salary is at least $675 per week for executive or administrative duties or $455 for professional


In general, your job may be considered to be “executive” in nature if the following are true:

• You manage the entire organization or a specific department or subdivision;

• You regularly direct the work of at least two full-time employees; and

• You have the authority to hire and fire employees or make recommendations on personnel matters that are given considerable weight within the organization

Although each of these duties leaves considerable room for interpretation, an executive employee is generally considered to be “the boss” or “in charge” or at least a part (however small) of the organization.


Your job may fall into the exempt “professional” category under the FLSA and NYLL, if the following are true:

• Your primary job duties require advanced knowledge and the exercise of discretion and judgment; and

• The knowledge needed to perform your job must be customarily acquired by obtaining an advanced degree or other prolonged study

In addition to the above criteria, your job may fall under this category if your job is in a creative or artistic field that requires invention, imagination, talent or originality. Examples of jobs that may fall into the “professional” category include lawyers, doctors, nurses, writers, journalists, and actors and musicians.


In order for your job to be considered “administrative” under the FLSA and NYLL, it must meet these criteria:

• Your job is office or non-manual in nature that is directly related to the management or general business operations of your employer (or its customers); and

• Your primary job duty is to exercise discretion or independent judgment over important matters

Common examples of administrative positions may include human resources, marketing, and accounting.

Questions? Seek legal help

Although these concepts may seem simple, in reality, the FLSA and NYLL rules regarding overtime pay are very complex and full of exceptions. Unfortunately, some employers take advantage of the confusion caused by this and misclassify nonexempt employees as exempt to avoid paying overtime. If you suspect that you are not receiving the overtime that you are entitled to, contact the experienced employment law attorneys of Serrins Fisher LLP for a free and confidential consultation.

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