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Can My Boss Avoid Paying Overtime By Calling Me An Executive? I Need A Wage Lawyer!

On Behalf of | Sep 28, 2015 | Wage: Overtime |

Best Ohio Overtime and Wage Claims Attorney Answer: Am I legally entitled to overtime wages? Does Ohio law require an employer to pay overtime wages to all employees? Does having a “supervisor” or “manager” title mean that I am not entitled to overtime? Can my boss refuse to pay me overtime but still expect me to work more than 40 hours per week?

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Wage and hour laws that deal with misclassification of employees, follows the simple duck test that most of us have heard before: if it walks like duck, swims like a duck and quacks like a duck, then it is probably a duck. As our overtime law attorneys have blogged before, employers will commit wage theft by trying to avoid paying employees their rightfully owed overtime pay at time and a half by misclassifying them as exempt employees or even trying to pretend that they are not employees by calling them independent contractors. (See Am I Being Misclassified As An Independent Contractor?; Are All Professionals Exempt From Overtime?; What If My Job Misclassifies Me As Independent Contractor?; Am I Entitled To Overtime If I’m A Manager In Name Only?).

Recently, in Cheng Chung Liang, et al. v. J.C. Broadway Restaurant, Inc., the United States District Court, S.D. New York did decide whether the plaintiff/employee, Cheng Chung Liang, was entitled to overtime wages from his employer, Empire Szechuan restaurant. Szechuan argued for Summary Judgment asserting that pursuant to the terms of the Fair Labor Standards Act (“FLSA“), that Liang should be classified as an “executive” and was therefore, “exempt” from the FMLA’s overtime provisions and as such, not into entitled to overtime wages.

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In this regard, claims of overtime wage violations may be brought under both  – as provided for by FLSA, and Ohio Law – as provided for by Ohio Revised Code §4111.03(A). It should be noted that ORC §4111.03(A), more or less, mirrors the language of the FLSA as it pertains to the law governing alleged overtime wage violations. In fact, ORC §4111.03(A) directly incorporates provisions of the FLSA and provides in pertinent part, that:

[a]n employer shall pay an employee for overtime at a wage rate of one and one-half times the employee’s wage rate for hours worked in excess of forty hours in one workweek subject to the exemptions of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C.A. 207, 213, as amended.

The determination of whether a particular employee is legally entitled to overtime wages under the FLSA, or is “exempt” from said overtime wages, is a question of law which can require the advice of an experienced overtime claims attorney.


In Liang, the employee was initially employed by defendant Szechuan in October 2009 as a “cook” and remained in that position until January 2010 when Szechuan: assigned Liang additional responsibilities not assigned to any of the other cooks; increased his pay to $3,500/month – equivalent to $42,000/year – and by comparison, $900.00/per month more than any of the four other cooks; and supposedly bestowed Liang with the title of “Head Chef.” By virtue of these facts, among others, Szechuan contended that “Head Chef” Liang should be classified as an “executive” employee under the FLSA, which would thereby render Liang exempt from the FLSA and, correspondingly, Szechuan would not be required to pay Liang overtime wages.

In support of its argument, Szechuan relied on FLSA’s overtime pay provision which provides that overtime does not apply to “any employee employed in a bona fide executive … capacity.” See FLSA 29 U .S.C. § 213(a)(1). Thus, Szechuan’s argument turned on whether it could establish that Liang was employed in an “executive” capacity. In this regard, whether an employee works in an “executive” capacity “depends upon the actual job characteristics and duties of the employee,” and several factors must be considered whether an individual employee should be classified as an “executive” for purposes of the FLSA’s “executive exemption.” The several factors are whether:

1) the employee is compensated on a salary basis;

2) the employee’s primary duty is management of the enterprise or of a customarily recognized department or subdivision thereof;

3) the employee customarily and regularly directs the work of two or more other employees; and

4) the employee has the authority to hire or fire other employees or if their suggestions and recommendations on personnel decisions are given particular weight.

Essentially, these are the elements for an employer to establish that an employee walks, swims and quacks like an executive.

In consideration of the above, Szechuan presented the following evidence: Liang was assigned additional responsibilities not assigned to the other cooks; would respond to customer complaints; received an increase in pay (as described above); had a role in hiring two or three cooks; and after all, Liang was the “Head Chef.”

On the other hand, Liang disputed Szechuan’s assertion with the following: that the vast majority of his time was spent cooking; his alleged title as “Head Chef” did not include managerial authority, and described his role as merely that of “a cook;” and further that management was not his primary duty as matters of employee hiring, firing, discipline, scheduling, and compensation were handled exclusively by an owner or “boss” in the restaurant, not by him.

In consideration of the above, the Court denied Szechuan’s Motion for Summary Judgment by stating that genuine issues of material fact concerning whether Liang’s “primary duty” was management of the kitchen; and further, that there was no definitive evidence concerning how much time Liang spent cooking versus assisting other employees, or the extent to which he performed his job under strict supervision.  Specifically, the trial court held:

In this case, numerous unresolved issues of fact bear upon whether managerial work constituted Liang’s primary duty. It is clear that he discharged some special responsibilities and received greater pay than the other cooks. And Ling admits, in his deposition and his affidavit, that he spent at least a small portion of his time assisting or directing other employees. But there is no definitive evidence concerning how much time Ling spent cooking versus assisting other employees, or the extent to which he performed his job under strict supervision.

Under these circumstances, the court must find that there are genuine issues of material fact concerning whether Liang’s “primary duty” was management of the kitchen.

As demonstrated, determining whether an employee is entitled to, or exempt from overtime wages pursuant to the FLSA can be very difficult to accurately determine. As such, some employer’s may wrongfully deny employees overtime wages based on improper employee classifications. If your employer is denying you overtime wages that you believe you may be legally entitled, you should consult the guidance of skilled legal counsel. Protecting the rights of employees and holding employers accountable for unlawful employment practices is the mission of the attorneys of Spitz, The Employee’s Law Firm.

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 Minimum Fair Wage Standards laws or you are an nonexempt employee that has been misclassified as exempt or independent contractor, contact the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. 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.


The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. 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 the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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