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Who Doesn't Get Overtime Pay?

Posted by Sean T. Olson | Jul 26, 2017 | 0 Comments

Coloradans and Wyomingites in the workforce are entitled to extra compensation for their overtime work, thanks to the Fair Labor Standards Act (or FLSA). The law entitles certain employees to compensation of one and one-half times their regular hourly rate for every hour of overtime worked. If the employee successfully sues for unpaid overtime earnings, he or she may be entitled to liquidated damages matching the unpaid earnings. A more in-depth explanation of the FLSA's protections can be found in our blog post, Not Being Paid for Overtime? There’s a Law for That. For this blog, we are going to assume that overtime wages were denied. But which employees are out of the FLSA's reach?  

The most common exemptions asserted through the FLSA are “executive,” “administrative,” and “professional” employees, and neither are allowed to recover unpaid overtime earnings through the statute. There is often confusion as to what these terms mean, and they can easily lead to misleading conclusions. For example, an employee with the title “office manager” may sound like an exempted administrative position simply because of that title. In practice, courts must analyze several factors to determine if the employee truly falls into one of the exempt categories, instead of blindly accepting exempt status by job title only.

What is most important to determining whether an employee is exempt is looking to that person's primary duties in the workplace. Under the FLSA, an employee's “primary duty” is one that is the main, principal, major, or most important duty that the employee performs. Courts take that information, then ask a series of factoring questions to make a final determination of what the primary duty is, and if it exempts the employee from overtime compensation. For example, the court might ask how much time is spent performing that duty, whether the performance of the duty is the employee's primary value at the company, whether the performance of that duty is important to the employer's success, and whether the employee has independent hiring and firing power.

The executive employee exemption generally applies to people making more than $455 per week and with certain job duties.  Typically, the executive employee is a person who regularly directs the work of two or more other employees, has authority to hire and fire other employees, and have a primary duty of “management” in the business.  If these conditions are present, the executive cannot recover unpaid overtime wages.

The administrative employee exemption normally applies to workers earning more than $455 per week and has its own set of specific job duties. Exempt administrators often perform non-manual office work directly related to the management of business. For example, exempt administrators usually work in areas concerning accounting, safety and health, advertising, and taxes, among others. Other crucial factors include if the administrator has authority to carry out major assignments in conducting business operations, authority to deviate from policy without approval, and authority to negotiate on behalf of the company.

The professional exemption, like the two above, also requires that the employee make more than $455 per week and performs certain duties. To be exempt, the professional's duties include work that requires invention, imagination, talent, or originality in a recognized field of creative arts (this is known as the “creative professional” exemption), or requires knowledge of an advanced type in a field of science which is usually earned by prolonged education or specialized training (this is called the “learned professional” exemption).

If you have been denied overtime compensation at your job, you may be entitled to compensation. Call the Olson Law Firm at (303)588-7297 or contact us online with questions about your overtime compensation and status to collect your earnings. We are happy to listen and offer you a free consultation.

About the Author

Sean T. Olson

Sean Olson is a trial lawyer and founding member of the Olson Law Firm serving clients in Colorado and Wyoming. His practice focuses on providing unrivaled representation in and outside courtrooms at the state and federal level. Prior to founding the firm, Olson served the law enforcement and business communities as a partner at another prominent law firm and as an associate attorney at a national litigation firm.  Olson's experience at those firms allows him to offer the same high quality service provided by large Seventeenth Street law firms at a fraction of the cost.  Olson tailors his representation to the unique needs of each client, taking the time to determine his client's wishes prior to beginning work on a case. Olson received his J.D. from the University of Denver Sturm College of Law where he graduated in the top one percent of his class. Since 2010, Olson has served as an adjunct professor teaching trial advocacy at his Alma Mater.  He graduated from Drake University in 1995 with a Bachelor of Arts in Journalism and Mass Communication.  Super Lawyers named Olson a Rising Star for the last four years in a row. Olson is a resident of Denver where he lives with his wife, two young children, and their dog, Maisy.  Prior to becoming an attorney, Sean was an Emmy award winning photojournalist.  His passion for that job took him around the globe telling other's stories.  He now uses those skills to tell his clients' stories in courtrooms across Colorado and Wyoming.


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