Am I Entitled to Overtime Pay?

May 8, 2013 in Articles | MARTIN WREN, P.C. | LEAVE A COMMENT

Virginia Personal Injury Lawyers

Am I Entitled to Overtime Pay?


Robert E. Byrne, Jr.

Robert Byrne, Jr.

One question we are commonly asked – “am I entitled to overtime pay?” – has anything but a common answer.  According to the Fair Labor Standards Act, most American employees are entitled to receive overtime pay.  Many employees, however, fall within one of many statutory exemptions to the Fair Labor Standards Act’s overtime pay requirements.  For those employees, overtime pay is not required under the FLSA.

Keeping in mind that employers are required to provide overtime compensation unless an employee is exempt from the FLSA, answering the question of overtime entitlement requires a legal analysis of three key features of the employee’s job.  When all three tests are met, the employee will be exempt and, as a result, not entitled to overtime compensation.  The three tests are:

First, the employee in question must be paid on a salary basis.  “Salary” means payment of a predetermined amount that is paid every week in which the employee performs work, and the salary must not be deducted based on the quality or quantity of work performed (though some deductions may be permitted in certain circumstances).  Put another way, the employee must receive a set salary, and the salary cannot be based on the number of hours the employee works in any given week.  Employees who are paid on an hourly basis are not exempt from the FLSA, and merely paying an employee a salary does not make them exempt.

Second, the employee’s salary must be at least $455 per week, or $23,660 per year.  Employees who receive a salary less than these amounts will not be entitled to overtime pay, even if the other two tests are satisfied.

Third, the employee’s primary job duties must be of a certain character.  More specifically, to fall within one of the main exemptions the employee must, among other things, have fairly unique skills, have specialized training or education, exercise authority in his or her position, utilize certain discretion, or perform duties specific to a certain job classification.  Many employers and employees mistakenly believe that merely giving an employee a certain job title, such as manager or assistant manager, will trump the job duties assessment and control the question of whether the employee is exempt.  Job duties, not job titles, are the critical focus for this test.

Generally speaking, these three tests will be utilized to determine whether an employee is exempt under the most common FLSA exemptions: the executive exemption, the professional exemption, the administrative exemption, the outside sales exemption, and a computer professionals exemption for IT workers who are paid at least $27.63 per hour.  Again, these “white collar” exemptions will apply when the three main tests – salary basis, salary level, primary duties – are all satisfied.

In addition to the white collar exemptions, there are also a number of specifically defined exemptions for particular industries, such as farmworkers, drivers and other motor carrier employees, salesmen and other automobile dealership employees, and employees for seasonal and recreational establishments.  These exemptions are not necessarily tied to the three-part test.

Finally, there are a number of defined exemptions that apply to very specific occupations, such as aircraft salespeople, airline employees, casual babysitters, companions for the elderly, live-in domestic employees, farm implement salespeople, federal criminal investigators, firefighters in small public fire departments, forestry employees of small firms, fruit & vegetable transportation employees, local delivery drivers and driver’s helpers, movie theater employees, police officers in small public police departments, radio station employees in small markets, switchboard operators, and taxicab drivers.  Employees in these and other specific occupations that meet these exemptions will generally not be entitled to overtime pay.  That so, any employees in these occupations should seek legal counsel to determine whether they are truly exempt.

Determining whether you are entitled to overtime pay can be a complicated issue.  For a free consultation regarding whether you are entitled to overtime pay, please contact Robert E. Byrne, Jr., a Virginia Unpaid Overtime Lawyer, a Whistleblower Attorney, and a Virginia Employment Attorney with MartinWren, P.C.  Bob is an AV-rated trial attorney experienced in settling and trying unpaid overtime disputes, and MartinWren, P.C.’s trial attorneys are licensed to handle overtime matters in Virginia, Washington, D.C., Maryland, and New York.  Bob can be reached by phone, toll free, at 855-812-9220, or at 434-817-3100, or by email at

If you feel that you are entitled to overtime pay that has not been given, please check out Bob’s article Damages Available for Overtime Violations.

This article is for informational purposes only.

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