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BusinessColumnistsCarrie Mason-Draffen

Outside-sales workers not eligible for OT

Eligibility for overtime pay generally depends on your

Eligibility for overtime pay generally depends on your employee status. You should check to see whether your position makes you exempt or not for overtime compensation. Photo Credit: Thongkoch Chutpattarachai

From time to time, Help Wanted focuses on a single subject. Today’s topic is overtime.

DEAR CARRIE: My co-workers and I work in sales 40 to 47 hours a week. We are paid hourly wages plus commission. The hourly pay makes up about 60 to 65 percent of our wages, while commissions account for the rest. Our employer says we aren’t entitled to overtime. Yet other employees earn overtime when they work more than 40 hours a week. I can’t see how the company can legally refuse to pay us overtime.

— Shortchanged?

DEAR SHORTCHANGED: Whether you are eligible for overtime depends on your status. Employees who qualify must be paid one and one half-times their regular hourly rate when they work more than 40 hours a week. But the fact that you are in sales and earn a commission suggests that you aren’t simply an hourly employee.

So the next step is to look at the types of work that are exempt from overtime to see if any apply to you. The most common are the executive, administrative and professional exemptions, said employment attorney Richard Kass, a partner at Bond, Schoeneck & King in Manhattan. Added to those is the less well-known outside-sales exemption, he said.

If the employee “is an outside-sales employee, then he is not entitled to overtime pay,” Kass said.

And what would qualify you as an outside-sales employee?

“An employee’s primary duty must be making sales outside of the employer’s place of business,” Kass said.

So that could be the reason you aren’t paid overtime. If you still believe you are being shortchanged, call the U.S. Labor Department at 516-338-1890.

DEAR CARRIE: I work in information technology. My job has been categorized as exempt, with nonmanagerial responsibilities.

Since I do not get paid overtime, my former manager never asked me to work more than 40 hours a week. But recently I got a new manager and was instructed to work some off-hours and weekends and to put in extra hours during the week. I told him I wouldn’t get overtime, so he said he would give me comp time. But based on my current compensation, I mentioned that the comp time wasn’t worth it and that I preferred additional compensation. That was denied. Since that incident, my boss no longer requires me to put in the extra hours. Instead, he asks others. But I have one lingering question: If asked, can I legally be required to work extra hours without more pay? — Lowdown on OT

DEAR LOWDOWN: As a nonmanagerial computer worker you could still be exempt from overtime by virtue of your salary and your duties. You have to earn at least $27.63 an hour to meet the salary test for an exempt computer specialist under federal labor law. As for duties, for starters you have to be employed as a computer systems analyst, computer programmer, software engineer or “other similarly skilled worker in the computer field,” the U.S. Labor Department says.

“They must be computer professionals performing one of the advanced duties as defined in the regulations,” said Irv Miljoner, who heads the department’s Long Island office.

Those duties consist of such things as systems analysis or the design, modification or testing of computer programs related to an operating system.

So you can be asked to work extra time. And if you are exempt, you don’t have to be paid for the extra hours.

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