Salary Alone Does Not Determine Exemption From Overtime Pay

Updated: June 7, 2021 by Rose H. Robbins, Esq.

You can be entitled to overtime pay even if your employer has misclassified you as exempt from overtime and is paying you a salary. Your right to overtime pay depends on much more than your “fancy” job title or your “salary” designation.   The Fair Labor Standards Act (“FLSA”) requires that most employees in the United States be paid overtime pay at time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek. Our law firm helps victim employees recover this theft of hard-earned wages by using remedies provided for in the FLSA.

You may reach our office by calling (954) 946-8130 or by filling out the confidential form at the bottom of this page. You will receive a free case evaluation and ff we accept your case you will not owe the law office any attorney fees unless we win the money for you first!


The FLSA does provide an exemption from overtime pay for employees in a bona fide executive, administrative, professional (“EAP”) capacity.  Outside sales employee as well as certain computer employees are exempt as well.  To qualify for this exemption from overtime, employees generally must meet certain tests based on their job duties and, according to the New Rule (effective January 1, 2020),  be paid on a salary basis at not less than $913 per week (or $47,476 annually for a full year).   The application of these tests to specific cases has been developed by the cases fought out in Courts.


The employer will give the employee a “phony” job title such as “manager,” “assistant manager,” or “supervisor” and pay them a fixed weekly “salary”  in order to get the employee to work over 40 hours a week without overtime pay. One sees this typically in retail stores and restaurants. In our review of the case we look at the actual duties performed by the employee to make the correct classification determination. These salaried workers are entitled to overtime unless their job duties come under the statutory exemptions which are narrowly defined.


No, these  “white collar” exemptions from overtime pay do not apply to manual laborers or other “blue collar” workers who perform work involving repetitive operations with their hands and using physical skill and energy.  The following typical industries violate the FLSA by paying employees a salary with no overtime pay: construction, carpenters, fire-protection installers,  electricians, mechanics, plumbers, iron workers,  craftsmen, security messenger/drivers, operating engineers and longshoremen.  These salaried workers are owed overtime premium pay under the FLSA, and generally are not exempt no matter how highly paid they are.

A Florida employee rights lawyer experienced in wage and hour litigation can analyze your particular job situation to find out if your FLSA rights have been violated so that you are owed overtime wages even though you receive a weekly salary. The lawyer will look at the actual job duties you performed in the business


Employees who have been misclassified as independent contractors are owned overtime. Many businesses seek to avoid paying overtime and providing benefits by this misclassification. Again, an analysis of your job duties and responsibilities consists of a multi-factor test focusing on the following elements:

Among the factors which the Courts have considered significant to determine there has been a misclassification of an employee as an independent contractor are as follows:

  1. The extent to which the services rendered are an integral part of the principal’s business.
  2. The permanency of the relationship.
  3. The amount of the alleged contractor’s investment in facilities and equipment.
  4. The nature and degree of control by the principal.
  5. The alleged contractor’s opportunities for profit and loss.
  6. The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
  7. The degree of independent business organization and operation.

If you suspect that you have been misclassified as an independent contractor instead of an employee, it is important that you talk to an experienced attorney to find out whether you have been cheated out of overtime wages.

Call the law office at (954) 946-8130  for a FREE  telephone consultation about your legal rights to collect your unpaid overtime wage violations even though you are being paid a salary. We accept qualified cases on a contingency basis after a careful and full evaluation.  Or, you can complete the simple form below for confidential submission to our office. We will contact you within 1 business day.  Please be advised that by merely submitting this form, no Attorney-Client relationship is formed with this law firm.   You must provide your name,  cell phone number, your email address and your zip code in the form.  We serve the following Florida counties: Miami-Dade, Broward, Palm Beach, Martin, St. Lucie, Indian River, Brevard, Okeechobee, Monroe, and Highlands.