Deskin Law Firm

A highly compensated job may be considered exempt if it is one in which:

- you are guaranteed a total annual compensation of at least $100,000.

- your job customarily and regularly performed one or more identifiable executive, administrative, or professional functions.

Computer related jobs that meet several tests may be exempt from overtime. This is most commonly true of jobs with the title of:

- computer programmer,

- systems analyst,

- computer systems analyst,

- computer programmer analyst,

- applications programmer,

- applications systems analyst,

Outside salespeople are exempt from overtime, but only if they meet the following definition of outside salespeople:

- You must be over 18 years old, and

- Your primary duty must either making sales or obtaining orders/contracts for which a client or customer will pay, and

- You usually work away from your employer's place of business and at the customer's place of business or home, selling tangible or intangible items, and

- You are spending more than 50% of your time doing these "outside sales" duties.

- You receive commission-based compensation.

Just because you have a contract that refers to you as an "independent contractor" does not mean that you actually are an independent contractor. The actual relationship that you have with your employer must be analyzed to determine whether you are an employee or an independent contractor.

There are many factors to consider to determine whether you are an independent contractor or employee. The most important factor is your employer's right to control the manner and means by which your work product is accomplished. If you control how you produce your work product then you are more likely an independent contractor. If your employer controls how you produce your work product then you are more likely an employee.

Professional, Executive and Administrative Employees are exempt and are not owed overtime. So the question is, are you considered a Professional, Executive or Administrative Employee? A review of each one is necessary to make sure you are not entitled to overtime because the names "Professional," "Executive" and "Administrative" can be a bit misleading.

An Executive Employee with ALL of the following characteristics may make you not be entitled to overtime:

- receiving at least two times the state's minimum wage as a salary for full-time employment. This is known as the "minimum salary level test." Assuming the minimum wage is $7.50 per hour with 2080 hours per year of work, that is $15,600. Times two is $31,200 or a monthly salary of $2600 per month.

Overtime Wages are wages of 1.5 times your regular rate. Your regular rate includes all renumeration for employment paid to or on your behalf, including:

- hourly earning or salary,

- piece work earnings,

Depending on your line of work, you may have the right to refuse to work more than 72 hours in a week.

Professionals, Clerical (administrative assistants), Technical, and Mechanical Employees can not be terminated for refusing to work more than 72 hours in a workweek.

If you prepare agricultural products for market you can work over 72 hours a week, if you want to, but you cannot be required to.

Every employee is entitled to one day of rest in 7. So, an employer cannot require you to work more than six days out of seven.

But if the nature of the work reasonably requires that the you work seven or more consecutive days, you have to get the equivalent time off in a calendar month to make up for the days you did not get off in the those seven days. So, if you work for 15 days in a row, you have to get two days off in that calendar month in addition to not being required to work consecutively for more than 6 days.

If you work more than five hours per day, you are entitled to a lunch break (or meal period or rest period) of at least 30 minutes. If you work 10 hours in a day, you are entitled to another 30 minute lunch break.

If you are allowed to leave your place of work and you are relieved of all duties you have during that break, you are not entitled to be paid for that time. If you are not allowed to leave the premises during lunch breaks, the break counts as time worked for overtime purposes, even if you are relieved of all work duties.

The time you spend going to and from work is generally not time that you employer should be paying you for.

But, travel time at your employer's direction counts as hours that you are working. For example, if your employer wants you to:
- meet a client at his office, then your employer should be paying you for the time you spend driving to and from the client's office.