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Employee Misclassification Is a Big Problem. Here’s What You Can Do About It.

January 7, 2022 Worker Misclassification

Your Rights Under the FLSA

The Fair Labor Standards Act (FLSA) requires employers to classify their workers as either exempt or non-exempt from overtime and minimum wage requirements. All non-exempt employees must be paid at least the minimum wage, plus overtime if they work more than 40 hours per week.

Exempt employees are supposed to be white collar workers in professional or management roles who make over a certain salary threshold. However, employers will sometimes try to miscategorize employees as exempt who shouldn’t be, in order to avoid having to pay minimum wage and overtime. If they do that, they may be in violation of the law.

If you suspect your employer may be misclassifying you, here are a few questions to ask.

Are You Paid Hourly?

Outside of certain specific exceptions, exempt employees are usually paid a monthly salary that isn’t based on the number of hours they work. As of this writing, exempt employees cannot be paid less than $684 per week on a salaried basis.

If you receive hourly pay and your employer says you’re an exempt employee, they may be misclassifying you.

Are Your Duties High-Level?

Sometimes managers don’t realize that to qualify as exempt, an employee can’t just make more than the baseline pay requirement. They also have to pass a duties test. Most exempt employees fall under executive, administrative, or professional functions, and their duties have to line up.

For instance, if an employee is classified as “executive,” they should have decision-making authority over issues that impact the business, such as the ability to hire and fire.

“Administrative” employees should be primarily engaged in managing office and non-manual work and business operations, exercising a certain amount of independent judgment.

And “Professional” employees generally perform work that requires advanced expertise in an area of science or learning, and usually have an advanced professional degree.

Your salary isn’t enough to grant you one of these statuses. And neither is your job title. If you have “Executive” in your title, for instance, your duties have to line up with those of a typical executive in order to qualify as exempt.

Does Your Job Involve a Lot of Manual Labor?

Generally, people employed in manual labor positions are considered non-exempt. Jobs that involve a lot of physical skill, or repetitive operations—such as mechanics, craftsmen, plumbers, ironworkers, longshoremen, and construction workers—fall under this category.

Is Your Classification Due to the Fact That You Have a Degree?

Having any college degree isn’t enough to classify you as “Professional” and thus non-exempt.

The professional exemption is for people with advanced knowledge as well as specialized academic training. If your job can be performed by people with the general knowledge provided by a Bachelor’s degree in almost any field, you may not qualify as non-exempt.

What To Do if Your Employer Is Misclassifying You

If you believe your employer may be misclassifying you as exempt from minimum wage and overtime payments, you should speak to a knowledgeable employment lawyer.

Your attorney can assess your situation, determine whether your employer is in violation of the law, and help you get restitution.

Call us at 267-273-1054 or email us at for a free, confidential consultation today.

The information provided here does not constitute legal advice. It is intended for general purposes only. If you have questions about a specific legal issue, you should speak to an attorney.