Federal and state employment law differentiates between two different categories of employee, exempt and non-exempt employees. The terms basically determine whether an employer must treat the employee with regard to the federal Fair Labor Standards Act (FLSA) and its state equivalents or is exempt from treating them as such. The term “exempt,” therefore, although it seems to apply to the employee, is really aimed at what the employer is legally bound to do or not to do.
The differences are mostly over whether the employee should be paid overtime as determined by the FLSA or not. An exempt employee has been exempted from the requirements of the FLSA and state laws on pay, so an employer is not required to pay them overtime. A non-exempt employee must be paid overtime as determined by the FLSA or state laws that make it compulsory to pay overtime if the employee works more than a specified number of hours.
If you believe that you have been underpaid by your employer or are not being paid overtime because your employer is unfairly classifying you as an “exempt” employee, even though you think you should be paid according to the FLSA, you should talk to an employment law attorney to discuss your legal options.
How Federal and State Employment Law Defines Exempt and Non-Exempt Employees
Non-exempt employees are those who:
- are paid an hourly wage;
- should be paid at least the federal minimum wage of $7.25;
- should be paid at least the state minimum wage if this is higher than the federal minimum;
- should be paid overtime when they work for more than 40 hours a week;
- should receive time and a half when they work overtime, i.e. 150% of their normal hourly rate.
- are not exempt from FLSA ruling or equivalent state legislation that covers employees on an hourly wage.
Exempt employees are those who:
- are normally on a salary, i.e. a fixed monthly or yearly rate of pay;
- may be expected to work “overtime” without any extra pay because there is no fixed number of hours a week in their employment contract;
- may still be paid in lieu of overtime, even if there is no law requiring them to do so. The employer may pay certain perks or benefits in lieu of overtime in recognition of extra work done.
- are in an administrative, executive or professional role;
- work as a computer operative; particularly a systems analyst;
- work in outside sales;
- are taxi drivers;
- are U.S. seamen on American flagged vessels;
- are movie theater workers;
- are agricultural workers;
- are local delivery workers;
- work for some motor carriers;
- are domestic employees who live in the home they work in;
- are news editors and other media personnel;
- are employees who work in the auto, farm implement, truck and trailer industries
- are employees who are exempt because they earn $684 per week or $35,568 annually (up from $455 per week or $23,660 annually). These are termed “highly compensated employees.”
- other employees of varying descriptions.
The definitions of exempt employees tend to be typically much more complex than those for non-exempt employees and it is here where often employees feel that they are not being paid appropriately because they think that their employer is classifying them in the wrong category.
How an Employment Lawyer Can Help
As you will have noticed, the list of “exempt” categories is quite extensive. Because of the complexities in the definitions of what employees may consider “exempt” or not, and the fact that both federal law (e.g. the FLSA) and state laws may affect what is considered exempt, you may end up not being paid fairly.
If you think your employer is trying to pay you less because you are unfairly treated as “exempt,” then you may be able to have your situation reconsidered if you get help from a qualified employment law attorney. It is best to choose an attorney who understands the nuances of employment law in the state you work in.
There can be considerable differences between different states and between various states and federal criteria. For example, as stated above, the federal minimum wage in 2020 is $7.25, but in California it is $13 an hour. If you are properly considered “non-exempt,” because you are being paid an hourly wage in California, you should be paid at least $19.50 an hour overtime. Complete the Free Case Evaluation on this page today!
