When jobs are misclassified

Carrie Mason-Draffen

1:23 PM EST, January 11, 2008

From time to time, Help Wanted focuses on a single topic. Today's subject is the misclassification of employees.

DEAR CARRIE: We have two salaried employees who each make more than $52,000 annually. Because of their high salaries, we are wondering if the company can legally consider them exempt from overtime. They aren't supervisors, even though two part-time workers assist them in various clerical duties. So can they be considered exempt from overtime pay? We cannot find anything in the labor law that addresses this situation.

-- Which Status?

DEAR STATUS: I'm so glad you sought advice before reclassifying the employees based solely on their salaries, because that would have violated labor laws. A number of factors determine whether an employee is exempt, not just salary.

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Employee misclassifications generate steady complaints to the U.S. Labor Department because so much is riding on the categorization. Employees who are truly exempt aren't eligible for overtime no matter how many hours they toil in a workweek. Of course, that means their employers save on the premium pay.

But employers can't declare employees exempt willy-nilly. To declare someone exempt because he or she is a supervisor, for example, the person must meet

For more information on exemptions, check out Book 29 of the Code of Federal Regulations, Part 541. Your library may have a copy. It's not the kind of book you'd curl up with, but it has a lot of good information.

For a fact sheet summarizing the rules for the "Executive Exemption," go to www.dol.

gov/esa/regs/compliance/whd /fairpay. Click on the Exemption fact sheet for "Executive Employees." Or call the U.S. Labor Department at 516-338- 1890 or 212-264-8185.

DEAR CARRIE: I was working in a spa from 2-8 p.m. My employer has just expanded my hours, requiring me to start 15 minutes early and quit 15 minutes later. So my new hours are 1:45 p.m. to 8:15 p.m., or 8:30 p.m. on busy weekends.

During that extra time, I have to restock supplies and clean. That's in addition to the extra time I've always devoted to changing into a uniform or traveling to various locations.

Despite the considerable extra time, my employer states that I am not eligible for extra pay because I am a commission-only employee and earn a salary, as opposed to being an hourly employee. Can an employer demand that commission-only employees forgo extra pay even when they must take on extra work?

-- Entitled to More?

DEAR ENTITLED: Your company can't declare you ineligible for the extra pay simply because it considers you a commission-only employee or because you earn a salary. As the answer above shows, so much more goes into determining whether an employee is exempt from being paid for all the time he or she works.

If you are not exempt, then the company has to pay you for the time you spend traveling to other work sites, changing into a uniform, cleaning and restocking. Those are all considered work under federal labor laws.

Your company needs to take a closer look at your duties to determine your status. Since you earn a commission, you probably work in sales in addition to your other duties. If you are an inside salesperson, meaning you spend most of your time at the office, then you could be nonexempt and have to be paid for all the time you work. Outside salespeople fall into the exempt category.

For more information on the exemption, call the U.S. Labor Department at the number above. For more on commissioned employees, call the New York State Labor Department at 516-794-8195 or 212-775-3880.