Overtime Attorney Best Answers: I am a computer professional exempt from overtime – how much should I be paid? What if I am paid on an hourly basis? What can I do If I do not make enough to be considered exempt, what are my options?
Our employment attorneys have previously blogged, the Fair Labor Standards Act (“FLSA”) creates an exemption for “Computer Professionals” from being entitled to overtime pay. Because Ohio’s overtime laws found at Ohio R.C. § 4111.03 are modeled on the FLSA, computer professionals are also exempt from Ohio’s overtime laws. However, even if you are considered a computer professional, your employer must nonetheless pay you a minimum of $27.63 per hour for the exemption to apply. And, as a recent court decision makes clear, that minimum pay requirement must be for each and every hour worked. It is not enough that the employee “averages” that rate of pay over the course of the week.
The case, Jones v. Judge Technical Services, Inc., involved a senior project manager who regularly worked over 40 hours a week, and who sometimes worked more than 50 hours a week. Based on his job duties, the employer classified him as exempt under the FLSA, and as a result he was not paid overtime. While it was undisputed that the employee met the “primary duty” test, the question of whether he met the second requirement was in dispute, i.e. whether the employee was compensated at a rate of at least $27.63 per hour,.
The employer’s pay structure, which was governed by an employment agreement, set out a “professional day” and “professional week” pay structure. Under the “professional day” pay structure, an employee would not be paid for more than 8 hours in day, unless they worked more than 10 hours in a day, in which case they would be entitled to pay for work performed after the 11th hour of work. Under the “professional week” pay structure, employees would simply be paid a flat rate based on 40 hours of work, with no compensation provided for overtime.
Relying on legal principles involving defenses to minimum wage claims, the employer argued that because the employee was paid “well above” $27.63 per hour, (the Court’s opinion doesn’t indicate exactly what he earned), he “averaged” at least $27.63 per hour, and thus, the exemption was met. The employee countered that the law says that for the exemption to apply, the employee must be paid $27.63 for each hour worked. Because the employee was not paid at all for hours 9 through 10, he argued that the exemption did not apply and that he was entitled to overtime as a result.
Agreeing with the employee, the Court first explained that the employer’s reliance on case law involving the computation of average pay for the purposes of complying with minimum wage laws was misplaced:
Defendant further argues that the Department of Labor’s Wage & Hour Division has adopted the [averaging standard] for determining whether an employee has received wages at a rate not less than the statutory minimum, and that this interpretation of the statute is entitled to deference. (Def.’s Br. in Support of Mot. for Partial Summ. J. 8-10.) Again, Defendant’s arguments focus on minimum wage theories not at issue here.
We agree with Plaintiff’s view that, based on the allegations raised in this case, the $27.63 requirement is not a minimum wage test, but rather a compensation test for applicability of the exemption pertaining to overtime.Plaintiff correctly stresses that Defendant’s argument fails to recognize that his claims are for unpaid overtime under § 207, not for unpaid minimum wages under § 206, and that there is a significant distinction between those provisions.Section 206 is directed at providing a minimum standard of living while § 207 is concerned with deterring long hours by making those hours more expensive for the employer. In light of these two separate provisions, we conclude that Defendant’s reliance on minimum wage arguments and case law is misplaced. The fact that § 213(a) refers to both §§ 206 and 207 does not mean,as Defendant urges, that the overtime provisions of § 207 can be conflated with minimum wage principles.
The Court then found that while the language of the FLSA was open both parties’ interpretations, it is well established that the language of the FLSA must be construed in favor of employees:
While the relevant unit for determining compliance with the computer-employee exemption’s compensation requirement is less than clear, and appears to be a matter of first impression, the appropriate construction of FLSA exemptions is not. The United States Court of Appeals for the Third Circuit has held that the FLSA must be construed liberally in favor of employees, and that statutory exemptions should thus be construed narrowly. … Therefore, an employer seeking to apply an exemption to the FLSA must prove that the employee and/or employer comes ‘plainly and unmistakably’ within the exemption’s terms and spirit.
As a result, the Court refused to dismiss the employee’s overtime claims, and further, it allowed the employee to certify a collective action, which will allow him to bring in other employees who were also not paid overtime.
The take away from this case is that the FLSA and its many exceptions can be quite confusing and open to differing interpretations. If you any questions about the Fair Labor Standards Act or
If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Fair Labor Standards Act or you are an nonexempt employee that has been misclassified as exempt, contact the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. Or, maybe you are being misclassified as an independent contractor. The wage and hour lawyers at Spitz, The Employee’s Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.
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