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New York Attorney Scoring Victories Against Misclassification of Employees

Through misclassification of employees, employers avoid their responsibility to pay their staff in accordance with state and federal laws. “Misclassification” happens when employers treat their employees as independent contractors or when employers misclassify regular employees as “exempt” from overtime rules.

Employees are generally entitled to overtime pay unless they are considered “exempt” from overtime pay under narrow exemptions for so-called “white collar” employees and for certain other workers. The “white collar” exemptions cover managerial, administrative, and professional employees who receive at least a certain minimum salary.

The Lawful Exemptions from Overtime Are Quite Narrow

To be exempt from overtime pay, two tests must be satisfied. First, the employee must be paid a salary of at least $455.00 per week, which equates to a salary of $23,660.00 per year. Employees who are paid on an hourly basis will fail this test and, generally, must be paid overtime for hours worked over forty in a week.

In addition, the employee must meet the “duties” test to be exempt from overtime pay. Under this test, the employee must exercise substantial discretion and independent judgment in the performance of her job and her actual job duties must fit into one of the categories listed below.

Administrative Jobs Exempt from Overtime

The employee's primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers. In other words, the employee must perform work directly related to the running or servicing of the business, as opposed to working on a production line or selling a product in a retail business.

Professional Jobs Exempt from Overtime

The employee's primary duty must be work requiring advanced knowledge that is intellectual in character and analyzes, interprets, or makes deductions from varying factors or circumstances. Routine mental, mechanical or physical work does not count as a professional job. Occupations that commonly (but not always) meet the professional exemption are law, medicine, theology, accounting, actuarial computation, engineering, teaching, sciences and pharmacy. Even though you may be employed in one of these fields, you may be outside the exemption depending on the exact scope of your duties.

Professional/Managerial Jobs Exempt from Overtime

Here, in order to be exempt from overtime, the employee must be managing the business or a department or division of the business. The employee must customarily and regularly direct the work of at least two or more other full-time employees. In addition, to qualify as exempt from overtime, the employee must have authority to hire and fire other employees; or, their recommendations about hiring, firing, and advancement must be given particular weight.

Computer and IT Employee Exemption Jobs Exempt from Overtime

In order to be exempt from overtime, an employee must work as a computer systems analyst, computer programmer, software engineer or similarly skilled worker whose primary duty consists of systems analysis techniques and procedures or the design and development of computer systems or programs. One common overtime exemption abuse is for companies to categorize all Information Technology (IT) personnel as exempt even though they do not fit within the criteria of the exemption. This overtime exemption does not include employees whose job duties fall within the scope of “help desk” services, whose primary duty is to help with troubleshooting, or who are responsible for installing and upgrading hardware and software on workstations.

New York Attorney Combating Misclassification to Get Workers the Wages, Benefits and Protections They Deserve

Although there are other overtime exemptions, the exemptions listed above are the most commonly used, and misused, by employers to deny employees overtime. The key point is that the law focuses on the actual duties performed by the employee not the job title. One common practice is to give an employee a special title, such as “assistant manager”, so that the employee appears to fit within the executive or administrative exemption, even though that employee is performing essentially the same job as those that she is supposedly supervising. If your job duties do not meet the strict criteria of the exemptions ―which frequently happens― you are entitled to overtime even if you otherwise receive a sufficient salary.

Keep in mind that under new Department of Labor regulations expected to take effect in 2016, all salaried workers ―regardless of title or duties― will be eligible for overtime if they earn less than $970 per week, or $50,440 annually.

An Experienced New York Overtime Exemption Lawyer Can Determine If You Are Properly Exempt

If you are reading this page, you may be questioning whether you are exempt or not. If your employer denied you overtime, telling you that you were “exempt”, we urge you not take his or her word at face value. At Braverman Law, we will look at your situation, analyze your job duties under the appropriate guidelines, and tell you if you have been properly classified. And if you have been misclassified, our law firm can file a lawsuit on your behalf to recover back wages and other monies.

If you believe that you have been improperly misclassified as “exempt”, call us at 212-206-8166 or contact us online today to learn how we can help you. Se habla español.


We will use our years of expertise and experience to fight for your rights as a business owner or employee. We have the skills, dedication, and knowledge to protect your best interests.