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​Am I Entitled To Overtime Pay? I Need The Best Wage Theft Lawyer!

On Behalf of | Nov 4, 2015 | Wage: Overtime |

Best Ohio Overtime and Wage Claims Attorney Answer: Does being on salary mean that I am not entitled to overtime wages? If my job description changes, will it have an impact on whether or not I am entitled to overtime? Who gets to decide if I am exempt from overtime pay?

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Today the temperature in Cleveland, Ohio hit 70 degrees, in November. So, of course, I’m thing about golf. Let’s face it, when it comes to keeping score during a round of golf, a lot of people cheat. When entering a score onto the scorecard, it can be easy to “forget” about a stroke here and there, or to blame the wind, or to secretly pull out the ol’ “footwedge” when your ball is sitting behind a tree. For the average golfer, there really isn’t much harm in “rounding down” or counting a close putt as a “gimme.” While this type of cheating in golf may be tolerated by the typical amateur golfer, it should not be applied off the course, and should certainly not be tolerated in an employment setting. For example, some employers may, whether intentionally or unintentionally, “cheat” their employees out of overtime wages. In this regard, consider the following wage and hour case.

In Sexton v. American Golf Corporation before the United States District Court, E.D. New York, Charles Sexton was employed by Defendant American Golf Corporation (“AGC”) as the Superintendent of the La Tourette Golf Course (located in Staten Island, New York) from 1999 until May 2012, when his employment was terminated. At the time of his termination, Sexton was earning $79,000 annually as a salaried employee and was eligible for an annual bonus. While the employee in this case did not claim that he had been wrongfully terminated, Sexton sued AGC for unpaid overtime wages pursuant to the Fair Labor Standards Act (“FLSA“).

As our overtime law attorneys have blogged before about wage theft, the FLSA requires employers to compensate employees who work more than forty hours per week at a rate of one and one-half times their regular rate of pay. (See How Far Back Can I Sue For Overtime? Best Lawyer Reply; Am I Entitled To Overtime? I Need A Lawyer!; Overtime Ploy: My Boss Says I Work For Two Companies; Should Interns Be Paid Overtime? Top Lawyer Reply!). The FLSA’s overtime pay provision, however, does not apply to every kind of employee. As such, some employees are exempt from the overtime protections provided by the FLSA. For example, the overtime provisions of the FLSA do not apply to any employee employed in a bona fide executive capacity. See FLSA 29 U.S.C. § 213(a)(1). This exception to the overtime provisions of the FLSA is commonly referred to as the executive exemption. (See Are All Professionals Exempt From Overtime?; Should I Be Paid Overtime Even If I’m A Manger?; Can My Job Not Pay Overtime By Calling Me An Executive?; What’s The Minimum Salary To Be Exempt For Overtime?).

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As applied to the case discussed herein, the employee sued AGC asserting that AGC regularly required him to work in excess of 40 hours per week but refused to pay him overtime wages as required by the FLSA. The employer countered employee’s claim by asserting that as the “Superintendent” of the La Tourette Golf Course, Sexton was, at all times, classified as an “executive” employee, and therefore, exempt from the overtime provisions of the FLSA. Thus, the primary dispute of this case was whether Sexton was exempt or nonexempt from the overtime wage requirements of the FLSA.

In determining the application of the executive exemption, courts have deferred to regulations from the Department of Labor (“DOL“) defining the FLSA’s scope. The applicable Department of Labor regulations provide that an employee is an “executive” if:

  1. they are compensated on a salary basis at a rate of not less than $455 per week;
  2. their “primary duty is management;”
  3. they customarily and regularly direct the work of two or more other  employees; and if
  4. they have the authority to hire or fire other employees or make “recommendations that are given particular weight.”

It is important to note the burden of invoking an employee-classification exemption to the overtime provisions of the FLSA rest upon the employer. As such, in order to establish that the employee had, in fact, been properly classified as an “executive” for purposes of the FLSA.

Now, in applying the above, neither party disputed the first prong of the “executive” definition as AGC had, in fact, compensated Plaintiff on a salary basis (and at a rate of more than $455.00 per week). And, in regard to establishing the three remaining prongs of the “executive” employee definition, AGC presented the Court with a copy of the employee’s “official job description” which provided that, as the “Superintendent,” Sexton’s essential duties and responsibilities included: maintaining the appearance and safety of the course; supervising irrigation scheduling; overseeing maintenance of the golf cart fleet; and managing staff by providing training, direction, supervision, evaluation and corrective action – including the hiring and firing of staff.

By contrast, Sexton testified that after new management took over operation of the La Tourette Golf Course in 2007, that although he kept the title “Superintendent” and continued to receive a salary, his work responsibilities changed to the point that his role as the “Superintendent” had effectively been reduced to that of an hourly wage rate employee. In this regard, the employee testified that after the change in management in 2007, that he spent significantly more time doing manual labor and janitorial duties such as greens-keeping and cleaning urinals significantly more than he did anything even remotely close to “managerial” type tasks.

Based upon the evidence presented, and in regard to the three remaining prongs, the Court found that genuine disputes of material fact remained as to: whether the employee’s management duties were his “primary” duties; how the employee’s work time was allocated between duties; and as to Sexon’s actual authority to hire and fire other employees.

Based on the preceding, the Court denied the employer’s motion to have the case dismissed as a matter of law, and the question as to whether the employee’s qualified as an exempt “executive” employee under the FLSA, would be left to the province of a jury. The Court held:

Whether an individual employee falls within that exemption is “a mixed question of law and fact.” Myers v. Hertz Corp., 624 F.3d 537, 548 (2d Cir. 2010). “The question of how the [employees] spent their working time . . . is a question of fact. The question whether their particular activities excluded them from the overtime benefits of the FLSA is a question of law . . . .” Ramos, 687 F.3d at 558 (quoting Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986)) (alteration in original). “Because inquiries into employees’ FLSA-exempt status are fact-intensive, even where there has been full discovery, courts are often reluctant to grant summary judgment based on an FLSA exemption.” Cheng Chung Liang v. J.C. Broadway Rest., Inc., No. 12-CV-1054 (TPG), 2015 WL 5439178, at *2 (S.D.N.Y. Sept. 15, 2015) (internal quotation marks and citations omitted).

The determination of whether an employee is exempt from the overtime requirements of the FLSA is a highly fact-intensive inquiry and must be made on a case-by-case basis and in light of the available facts. If you believe that your employer may be unlawfully refusing to pay you overtime wages, you should seek an experienced wage and hour lawyer.

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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