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Fair Labor Standards Act (FLSA): What If An Employee Works In Both Exempt And Nonexempt Positions?

On Behalf of | Jul 4, 2013 | Wage: Minimum Wage, Wage: Overtime |

Lawyer in Cleveland, Ohio

What if an employee works in more than one position at your job? What if an employee has one job title but perform job duties under two or more different positions? With employers looking for fewer employees to perform more job duties these days, an interesting question for wage and hour attorneys  is becoming more frequently seen in wage and hours cases: What job duties control in determining whether an employee is exempt or nonexempt for purposes of the Fair Labor Standards Act?

Well FLSA has an answer. According to the Code of Federal Regulations, 29 CFR § 541.700:

When an employee performs work in more than one capacity for an employer, for example, an office assistant – a position that is typically nonexempt, and as a manager – a position that is typically exempt, the standard for determining whether the combined duties are exempt is the primary duty test, which considers the character of the employee’s job viewed as a whole. If the exempt managerial duties are the primary duty, the employee will be exempt. If the nonexempt office assistant duties are the primary duty, the employee will be nonexempt. If the employee is determined to be nonexempt, normal regular rate principles apply in calculating overtime due to the employee.

Cleveland 060Seems simple enough. However, it is not often clear as to what are the employee’s “primary duties.” In fact, an entire lawsuit may rest upon the seemingly simple determination of whether an employee’s “primary duties” are those duties that would be considered exempt under the FLSA or nonexempt under the FLSA. Making things even more complicated is the fact that how an employee spends his or her time at work is a factual question that often must be resolved by a jury. Thus, if you are an employee who takes on multiple positions or job duties belonging to two or more different positions, and your employer has classified you as an exempt employee, you may have rights under the FLSA that are not being properly afforded to you. If you are in such a predicament, call the employment attorneys at Spitz, The Employee’s Law Firm for a free consultation today.

If you have been denied minimum wages or not paid time and a half for your overtime hours, or even think that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ wage rights under the Fair Labor Standards Act (FLSA) and Ohio wage law. The opportunity to meet directly with a wage and hour lawyer is just a phone call away.


The wage and hour law materials available at this employment law website are for informational purposes only and not for the purpose of providing legal advice. You should contact an Ohio attorney to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm or any individual attorney.

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