Deskin Law Firm

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.

- the primary function of your job is managing the enterprise, or of a department or subdivision.

- you have the authority to interview, hire, train and fire employees or at least you are expected to make recommendations,

- you have the authority to set and adjust or at least recommend employees pay rate and hours of work,

- you have the authority to direct the work of employees,

- you maintain production or sales records for use in supervision or control,

- you appraise employees’ productivity and efficiency to recommend promotions or demotions,

- you handle employee complaints and grievances,

- you discipline employees,

- you plan the work, determine the way it will be done and assign the work among employees,

- you determine the type of materials, supplies, machinery, equipment or tools to be used to do work or the merchandise to be bought, stocked and sold,

- you control the flow and distribution of materials or merchandise and supplies,

- you provide for the safety and security of the employees or the property,

- you plan and control the budget, or

- you monitor or implement legal compliance measures.

- your job regularly directs the work of two or more full-time subordinate employees (or their equivalent part time employees, like 4 half-time employees). AND

- you devote less than 50% of work time to activities other than managerial duties.

If you are a business owner you are probably exempt, if you actively manage employees and you own at least a 20 percent equity interest in the business you will be considered exempt.

There are two different kinds of Professionals, the Learned Professional and the Creative Professional.

As far as the Learned Professional Employee, if you have ALL of the following characteristics you may not 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.

- you must have at least a four-year college dregree and one year of specialized study to be in the profession. This means you must have a specialized academic degree or intellectual training. This exemption does not apply to jobs that most employees acquire their skill by experience rather than by advanced specialized intellectual instruction.

- you must devote more than 50% of your time to performing work requiring advanced knowledge, meaning work which is predominantly intellectual, and not work that is routine mental, manual, mechanical or physical work.

- your work must be in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.

In most cases, only licensed or certified occupations are exempt and not entitled to overtime. Those employees who are not entitled to overtime include:

- licensed lawyers practicing law (paralegals may be entitled to overtime) (minimum salary requirements do not apply to lawyers - they are nearly always exempt),

- licensed physicians practicing medicine, interns and residents (nurses may be entitled to overtime)(minimum salary requirements do not apply to doctors - they are nearly always exempt),

- pharmacists (pharmacy technicians may be entitled to overtime),

- dentists,

- optometrists,

- architects,

- civil, mechanical and electrical engineers (junior drafters or unlicensed engineers may be entitled to overtime),

- physical, chemical and biological scientists,

- theologians,

- actuaries,

- tutors, teachers, lecturers, or professors, (minimum salary requirements do not apply to teachers - they are nearly always exempt)

- certified public accountants (not uncertified accountants or bookkeepers), and

- other occupations with a recognized professional status BUT NOT occupations that are in the mechanical arts or skilled trades where the knowledge could be of a fairly advanced type, but is not in a field of science or learning.

- the job you have cannot be standardized, you must have considerable freedom about how to carry out your tasks, and general control over hours of work.

As far as the Creative Professional Employee, if ALL of the following characteristics apply to you, you may 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.

- your primary duty is to perform work requiring invention, imagination, originality, or talent. This exemption is generally met by:

- actors,

- musicians,

- composers,

- soloists,

- certain painters,

- writers,

- cartoonists,

- essayists,

- novelists, and

- some journalists - if they collect, organize and record information that is routine or already public, or if they do not contribute a unique interpretation or analysis to a news product, they are not exempt, but if they do work requiring invention, imagination, originality or talent, then they are exempt.

- your work must be in a recognized field of artistic or creative endeavor, like:

- music,

- writing,

- acting, or

- graphic arts.

An Administrative Employee with ALL of the following characteristics may not be entitled to overtime:

- you are 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.

- you are devoting more than 50% of your time to performing office or non-manual work directly related to the management or general business operations of your employer, meaning you have to assist in the running of the business, or in the servicing of your employer's customers (like being an advisor, consultant or tax expert to your employer's clients). This could include work in areas of the business like:

- tax,

- finance,

- accounting,

- budgeting,

- auditing,

- insurance,

- quality control,

- purchasing,

- procurement,

- advertising,

- marketing,

- research,

- safety and health,

- personnel management,

- human resources,

- employee benefits,

- labor relations,

- public relations,

- government relations,

- computer networking,

- Internet and database administration,

- legal and regulatory compliance, or

- other similar areas.

- you customarily and regularly exercise discretion and independent judgment in the performance of intellectual work in which you evaluate possible courses of action and have the power to implement a decision on your own, free from immediate supervision after considering various possibilities with respect to matters of significance. It has to be more than the using skills in applying well-established techniques, procedures or specific standards described in manuals or other sources. Some factors that make it more likely that you are doing Administrative type work include whether you have authority to:

- formulate, affect, interpret, or implement management policies or operating practices;

- carry out major assignments in conducting the operations of the business;

- perform work that affects business operations to a substantial degree;

- commit the employer in matters that have significant financial impact; or

- waive or deviate from established policies and procedures without prior approval.

There are other ways you may be exempt of overtime.

» Contact Deskin Law Firm About Your Overtime Compensation Question

If you believe that you are not getting overtime wages when you should use our detailed Overtime Compensation Question form to send us a detailed question about your overtime situation.