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Are salaried employees entitled to overtime pay?

The practice of employers inflating employees’ job titles to avoid overtime pay has received a lot of media attention lately after a study by economists at Harvard Business School and the University of Texas at Dallas. By looking at job listings with managerial titles near the Fair Labor Standards Act’s cutoff for employee overtime pay, the researchers found that inflated titles occurred five times as often just above the threshold. Companies saw substantial savings from this clerical sleight of hand, avoiding paying an estimated $4 billion in wages a year.  

But there’s another common side to overtime exploitation. Workers often believe—and employers often lead them to believe—that salaries are an automatic disqualifier for overtime pay. While the Fair Labor Standards Act’s definitions are incredibly complex, some salaried employees are, in fact, entitled to overtime. And just as companies hire at a manager title without managerial responsibilities to avoid paying overtime rates, they’ll also move employees from an hourly basis to salary to do the same. 

So how do you know if you might be eligible for overtime pay, and what should you do if you believe you are?  

How overtime works 

The Fair Labor Standards Act (FLSA), established under the U.S. Department of Labor as a part of the New Deal in the 1930s, aimed to set parameters on working life during a time of employer abuse. A 40-hour workweek, guidance on minimum wage, limits on child labor, and overtime compensation helped protect workers and force some separation between working life and leisure for Americans.  

Under FLSA rules, hourly employees are almost always eligible for overtime pay: at least time and a half for work above the standard 40 total hours per workweek. These are non-exempt employees. 

But employees may be considered exempt from FLSA overtime rules under three conditions: 

1.     The salary basis test: Employees receive a fixed salary instead of an hourly rate that fluctuates depending on their schedule. 

2.     The salary test: Workers meet the exemption threshold—basically a minimum pay that could be considered a supportive salary. In 2020, this bumped up to $35,568. Some states (though not Georgia) have set their own, higher thresholds. 

3.     The duties test: Primary duties include executive, administrative, or professional work —often considered white-collar work. This is why blue-collar workers, or workers who typically provide manual and physical work, are often still eligible for overtime even if they’re highly paid. 

Employers have a lot of discretion in how they classify employees, and there are many ways to engineer FLSA guidelines to lower payroll costs. Here are some of the most common scenarios where salaried employees are actually due overtime: 

Eligible workers don’t know they’re eligible 

In many workplaces, it’s understood that a salaried job might mean sometimes working late on a project, prepping for a presentation on a weekend or traveling to a conference out of state. By extension, salaried workers tend to expect some flexibility on the part of their employer, allowing them to manage medical appointments and occasional family events without issue. 

Salaried pay also usually means better compensation and high-value benefits. Most salaried workers expect PTO, competitive health insurance, life insurance and retirement plan matching. Ideally, the value of these benefits outweighs the occasional time demands outside of the working week. 

But salaried workers can still be eligible for overtime pay, though most assume they’re exempt unless employed in a field where overtime is widely used and understood, like law enforcement. 

 If you’re in a salaried role that’s not an executive, administrative, professional or outside sales position and you’re regularly asked to stay late, work weekends, work through lunch, travel outside of working hours or “volunteer” for events beyond your normal workweek, it’s worth speaking to an employment attorney about the number of hours you are working.  

Workers are promoted to salaried positions but lose out on pay 

Workers often accept and celebrate promotions to salaried positions as a sign of career advancement. But employers sometimes take advantage of FLSA rules to load their workers down with unpaid overtime. Sometimes, losses in potential overtime pay will even overtake the benefits that come along with the salary.  

If your employer switched you to a salaried position without major changes to your job duties, and if you’re regularly required to complete hours of work beyond your normal schedule, an employment attorney may be able to help. 

Workers are misclassified in management roles 

Management positions usually come with added responsibilities: hiring and firing, setting schedules, placing supply orders, or otherwise guiding a company’s operations with skill and expertise. Because of these added responsibilities, managers should earn more and have more control over their hours and career path. 

But, as the Harvard Business School and the University of Texas at Dallas study made clear, companies will inflate titles to avoid paying overtime hours, even if the supposed manager’s work is nearly identical to an hourly counterparts. 

Challenging overtime assumptions 

In the 1970s, not only did most employees working overtime qualify for overtime pay, but more than 60 percent of salaried employees did as well, according to the Economic Analysis and Research Network. As that percentage has dropped over the decades, many workers are no longer aware that they might be entitled to overtime, or they believe their employers will retaliate against them if they raise the issue. The complexity of Department of Labor overtime laws also makes it hard to understand “exempt” and “non-exempt” classifications.  

An employment attorney familiar in labor laws can help, however. Employers who misclassify workers or otherwise withhold overtime pay may be subject to fines and back overtime payments. If you think you’re being treated unfairly, keep a record of the extra hours you work, make note of how other workers with jobs similar to yours are classified, and talk to an employment lawyer who specializes in employment law. 

Contact Radford Scott to discuss your situation 

Employers sometimes take advantage of the complex rules around overtime pay and salaried workers. If you believe you may be eligible for overtime pay, it’s worth speaking to an attorney to learn more about your situation. We take a hands-on approach to every case we work on, and we have an established history of success in Georgia. 

Contact us today to discuss your situation. 

 

How to Protect Yourself from Unlawful Workplace Harassment

Speak up to protect yourself from unlawful workplace harassment 

Workplace harassment can quickly drain the joy out of any job. While there’s a growing shift toward speaking up about abusive comments and conduct—the #MeToo movement marked a major change—plenty of people still feel pressured to stay silent.  

Employees at every level—from hourly workers to those in senior management—, can feel silenced. Low wage earners and those who face power imbalances like immigration status may fear they’ll lose much-needed work or endanger their family’s safety if they report harassment. Those in management or executive roles may worry they’ll derail a career they have built over many years, burn bridges in their industry, or gain an unfair reputation for being difficult.  

No one deserves to endure workplace harassment. It should never be a condition for continued employment or career advancement.  

If you feel like you’re being harassed at work, early intervention, clear self-advocacy and documentation are your best strategies for ending the negative behavior and protecting your legal rights so you can move forward in your career. If the harassment doesn’t stop, or if your company retaliates against you, those strategies will also form the foundation for your legal complaint.   

What is workplace harassment? 

Legally, harassment occurs when a supervisor, coworker, vendor, client or customer makes an employee or group of employees feel threatened or abused, and that behavior centers on one or more protected characteristic, like race, religion, color, sex (including gender identity, pregnancy and sexual orientation), national origin, age, genetic information and disability. 

Unfortunately, the law does not cover harassment when it is not based on one of these characteristics—e.g. you have an “equal opportunity jerk” for a boss. Indeed, not all toxic behavior is illegal. Leaders may micromanage. Coworkers may make passive-aggressive comments. Clients may let slip an inappropriate joke. 

Title VII of the Civil Rights Act of 1964 protects workers against unlawful harassment, as does the Age Discrimination in Employment Act and the Americans with Disabilities Act.  

 According to the Equal Employment Opportunity Commission (EEOC), harassment becomes illegal when: 

  • Putting up with the harassment is a requirement of employment. 
  • The harassment is so severe or ongoing that a “reasonable person” finds it abusive or hostile.  

 It’s also illegal to harass anyone already involved in a discrimination suit or EEOC complaint.  

What does harassment look like? 

Unfortunately, workers sometimes excuse away harassment because it doesn’t register as something clearly wrong or illegal, like a physical assault. 

Harassment may take many forms, however, including:  

  • Offensive jokes based on race, sex, national origin, or disability 
  • Slurs and epithets  
  • Intimidation  
  • Physical threats, as well as actual assaults
  • The display of offensive pictures, signs, or symbols 
  • Mockery of one’s protected characteristic 

Harassment can be sexual, psychological, physical, verbal or take place entirely online. And because it’s pervasive and hostile, victims can include onlookers—employees who aren’t the intended targets of the abuse.  

Unlike some other forms of discrimination, harassment doesn’t need to lead to a lost opportunity in order to qualify as illegal. It doesn’t require a missed promotion or a job loss. The workplace itself is the problem.  

What should you do if you believe you’re being harassed?  

Employers have an obligation to protect their employees from harassment. Ideally, this is preventative work, with clear messaging around conduct, manager training and open channels for reporting issues. When a problem arises, companies that value their people, public reputation and productivity take swift action.   

If you believe you’re being harassed at work, it’s sometimes productive to directly ask your harasser to stop. Not everyone will feel comfortable doing this, however, or it won’t be effective. Regardless, your next step is to put your concerns in writing and share them with HR. Aim for clarity here—be concise, polite and make note of the protected characteristics your harasser has targeted.  

What actions should you expect from your employer?  

Employers are liable for the behavior of employees, contractors or visitors if they know about harassment and choose not to act. They’re liable for the behavior of supervisors if the supervisors create a hostile environment or exert a negative influence on the career of the person being harassed.  

Your employer should act quickly and keep you updated on progress. If HR suggests corrective opportunities, accept them or clearly voice why you feel they could expose you to further harassment. Employers can sometimes defend themselves against harassment claims if they argue the accuser didn’t work cooperatively.  

Of course, if your employer responds with hostility—a demotion, for example, poor performance reviews or a dismissal—you may have a retaliation suit. While it’s sometimes challenging to prove harassment, retaliation is often quite clear. Again, it’s helpful to maintain records of your attempts to resolve the problem, as well as notes on the harasser’s actions and your own performance reviews.  

A Georgia employment lawyer can help determine if you have a possible claim with the Equal Employment Opportunity Commission or the Georgia Commission on Equal Opportunity. No one should feel unsafe or abused at work. While career mobility and advancement are undeniably important, so is advocating for a safe and healthy work environment.  

Contact a Decatur employment lawyer today 

At Radford & Keebaugh, we’re open and up front with our clients. We’ll take a look at your situation and give you our honest opinion. Our goal is to help you end harassment and move forward in your career. Contact us to talk over your situation. 

 

 

Utah Federal Judge Cites Hobby Lobby in Child Labor Case

In Burwell v. Hobby Lobby, Supreme Court Justice Ruth Bader Ginsburg warned in her written dissent that through its decision the Court had, “ventured into a minefield.”

As described in this article, U.S. District Judge David Sam cited Hobby Lobby is his decision to excuse an individual from testifying in a current child labor action.

Amid allegations that  the Fundamentalist Church of Jesus Christ of Latter-Day Saints, a sect of the Mormon Church, forced children to miss school in order to harvest pecans for eight hour days without pay, the Department of Labor began an investigation into the charges.

Vergel Steed, a member of the church, was deposed in January and used the Religious Freedom Restoration Act to help protect him from identifying church leaders who are thought to be parties to the alleged activity. The RFRA provides that individuals may be exempt from laws that go against their religious beliefs and/or practices.   Based on this and the recent Hobby Lobby decision, Judge Sam ruled that due to his religious beliefs, Steed is not obligated to respond to a Federal Subpoena that would require him to name individual church leaders.

In his decision, Judge Sam citing Burwell v. Hobby Lobby, “It is not for the Court to ‘inquire into the theological merit of the belief in question.’ The Court’s ‘only task is to determine whether the claimant’s belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief.”

Dean of UC-Irvine School of Law, Erwin Chemerinsky, calls Sam’s decision “stunning,” stating, “I think it is quite predictable that the court’s decision in Hobby Lobby would open the door to such claims of an exemption from laws for religious reasons.    I fear it is just the start of cases of people claiming religious exemptions from general laws.”

If you or someone you know believe they have experienced unlawful employment practices, the team at Radford & Keebaugh can help.   Contact us by phone at (678) 369-3609 or use our contact form.

 

Linkedin to Pay $6 million in Overtime Settlement

As detailed in this article, The National Department of Labor has found that Linkedin violated the Fair Labor Standards Act (FLSA).    The FLSA establishes that when working over forty hours per week, nonexempt workers are to be paid overtime at 1.5 their hourly rate.

359 current and former employees of Linkedin will share the estimated $6 million settlement reached between the company and its workers.     Linkedin will also provide training to all employees that off the clock work is prohibited for non-exempt employees.

Administrator for the Labor Department’s Wage and Hour Division stated that Linkedin has, “shown a great deal of integrity by fully cooperating with investigators and stepping up to the plate without hesitation to help make workers whole.”

Vice President of Corporate Communications for Linkedin, “This was a function of not having the right tools in place for a small subset of our sales force to track hours properly.”

If you or someone you know thinks they have not received  overtime wages, the team at Radford & Keebaugh can help.   Contact us by phone at (678) 369-3609 or use our contact form.