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Can Hourly Employees Be Exempt From Overtime? – The Spitz Law Firm

Greatest Wage and Hour Lawyer Reply: If I’m a salaried employee, can my employer deduct pay once I take a half a time off from work? Am I entitled to time and a half pay for working 50 hours per week at my job? Can my boss just name me an government or knowledgeable to avoid paying me extra time pay?

Right now’s Truthful Labor Standards Act (“FLSA”) example is a few sushi chef, Alex Y. Kim, who sued his employer, Umami Grill & Sushi, LLC and its owner Jennifer Zilliox, as a result of he was not paid additional time for working greater than 40 hours per week. This underpaid employee not solely sued on his personal behalf, but he also sued on behalf different cooks or cooks who’re answerable for getting ready and serving food at the similar employer. Bringing a declare on behalf of different staff underneath the FLSA for wage theft violations is widespread and is known as a collective action. (see Can I Sue My Employer For Additional time Pay On Behalf Of All Employees? I Want A Lawyer!).

You may assume that the majority FLSA additional time instances includes disputes between he worker and the employer about whether the worker truly labored more than 40 hours per week, because at that time the employer is required to pay a non-exempt employee time and half for all further time labored. Particularly, the FLSA at 29 U.S.C. § 207(a) requires coated employers to compensate nonexempt staff at extra time rates for time labored in excess of statutorily defined most hours while the FLSA’s 29 U.S.C § 216(b) creates the cause of action that permits staff to sue employers who violate the extra time compensation laws.

Nevertheless, these common readers of our wage and hour attorneys blogs is aware of that the time and half requirement solely applies to non-exempt staff. (Are All Professionals Exempt From Additional time Pay?; Are Managers Entitled To Extra time Pay? I Want A Lawyer!; Are Outdoors Sales Individuals Entitled To Minimum Wage? Ohio Lawyer Greatest Answer!). The listing of staff who are specifically exempted from additional time pay requirements might be found at 29 U.S.C. § 213(a)(1), and mostly embrace administrative staff, pc staff, government staff, extremely compensated staff, artistic professional staff, discovered professional staff, educating professional staff, and out of doors salespeople. Beneath the FLSA, an employer might make a deduction from the common pay of exempt staff due to absences lasting a number of full days. Nevertheless, deductions is probably not made for partial days. See 29 C.F.R. § 541.602(b)(1) (“[I]f an exempt employee is absent for one and a half days for personal reasons, the employer can deduct only for the one full-day absence.”). Thus, even in case you are an exempt employee beneath one of many classes listed above, you mechanically turn into entitled to extra time pay at time and half the second your employer deducts a portion of a day out of your paycheck – reminiscent of deducting an hour for leaving early or a half day for going to the physician.

And, this sets the stage for our wage dispute example.

You see, when an employer, such as the restaurant on this case, can’t dispute that the worker labored more that 40 hours per week, they need to provide you with some argument – it is extremely uncommon, I imply extremely uncommon, to see an employer roll over and admit that they violated wage and hour legal guidelines beneath the FLSA. So, when this occurs, a large number of employer try and misclassify the complaining employee as an exempt worker. Our wage theft attorneys have blogged about this earlier than too. (My Boss Calls Me An Unbiased Contractor, Am I?; Does Simply The Title Manger Stop Me From Getting Extra time Pay? I Want A Lawyer!; Can My Boss Avoid Paying Additional time By Calling Me An Government? I Want A Wage Lawyer!).

In right now’s wage and hour instance, that’s exactly what happened. The employee alleged in his grievance that the employer paid the sushi cooks a flat wage and didn’t pay the extra time premium even though these cooks habitually labored over 60 hours per week. In response, the employer sought to have the grievance dismissed by submitting a movement for abstract judgment by which it argued that Kim was exempt from the FLSA extra time necessities as a result of he fit into both the bona fide government exemption and the bona fide professional capability exemption.

Particularly, the employer, Umami, argued that Kim “was not a simple line or prep cook that followed recipes,” however as an alternative, he created them and managed the sushi department and typically the front of the home staff. To counter these arguments, the employee, Kim, argued that he was not paid on a wage foundation – which is a requirement for all exempt classes. In help off this argument, Kim submitted a collection of paystubs to the courtroom demonstrating that his pay fluctuated from paycheck to paycheck. Kim additional argued that his employer’s arguments are contradictory and negate each other because his main obligation (which implicitly restricted to at least one obligation) can’t be both management and artistic design. While the second argument is sensible in the actual world, remember that parties in lawsuits can make various arguments. “Primary duty” as utilized in applying the FLSA means the principal, most important, main or most necessary obligation that the employee performs. When courts are deciding what an employee’s main obligation is, the courtroom will think about all of the information relating to the employee’s job, with the numerous give attention to the character of the employees’ general job.

Related to this sushi chef instance, staff who are employed in a bona fide government or skilled capacity are exempt from the extra time requirement. Both of the employers’ asserted exemptions apply to staff compensated on a “salary basis” which suggests, that the worker “regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee’s compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” Spoken in plain English, because of this your paycheck is identical every week with few exceptions. Again, Kim put his paystubs into evidence that his pay fluctuated. The courtroom noticed that on February 4, 2014, the employer paid Kim $1,772.68 for his two-week pay period however that the employer paid him $1,636.32 on February 18, 2014 and $1,909.04 on March four, 2014 for 2 weeks’ pay.1 Id. He acquired credit card recommendations on prime of the “regular” price listed on his pay stubs. Kim submitted paystubs indicating that he was sometimes paid lower than $1,500 for a two-week pay interval – which is one other FLSA minimal requirement. This proof included paystubs displaying that the employer restaurant paid Kim $1,309.05, $1,454.50, $1,163.60 and $1,zero18.15, with the lowest paycheck being a paltry $436.35 as his “regular” fee.

The courtroom held that the deductions on Kim’s paystubs did not add as much as full-day absences and that the employer failed to supply some other rationalization that might clarify the fluctuation within the regular price of pay. Provided that this aspect is a vital and required aspect to both the bona fide government exemption and the bona fide skilled capability exemption, the courtroom held that the employer did not show that both exemption utilized and denied the movement for summary judgment. Because of concluding that this main requirement was not met, the courtroom did not reach the remaining necessities of both exemption.

However, since this is an academic weblog, our wage and hour legal professionals will delve somewhat deeper. The bona fide government worker exemption applies when the employer can meet the burden of displaying all of those requirements: (1) The worker have to be compensated on a salary foundation (which is what our legal professionals mentioned above) at a price not lower than $455 per week; (2) the employee’s main obligation have to be managing the enterprise, or managing a typically recognized division or subdivision of the enterprise; (three) the worker must typically and repeatedly direct the work of no less than two or extra other full-time staff or their equal; and (four) the worker should have the authority to rent or hearth other staff, or the worker’s strategies and proposals as to the hiring, firing, development, promotion or some other change of status of other staff have to be given specific weight. Whereas necessities (2) and (three) is perhaps up for debate in our example, Umami did not allege that Kim had the power to hire and hearth, which would also be an entire bar to the employer proving this exemption.

The bona fide skilled capacity exemption is a little more difficult as there are two subcategories, the discovered skilled exemption and artistic skilled exemption. First, to qualify a employee beneath the discovered professional worker exemption, the employer must show all of those requirements: (1) the employee have to be compensated on a wage or payment basis (again, that is the widespread requirement) at a price not lower than $455 per week; (2) the worker’s main obligation have to be the efficiency of labor requiring superior information, defined as work which is predominantly mental in character and which incorporates work requiring the consistent exercise of discretion and judgment as distinguished from work involving routine mental, guide, mechanical or physical work; (3) the advanced information have to be in a area of science or studying (regulation, drugs, theology, accounting, actuarial computation, engineering, architecture, educating, numerous varieties of bodily, chemical and organic sciences, pharmacy and different occupations that have a acknowledged skilled standing); and (four) the advanced information have to be typically acquired by a protracted course of specialized intellectual instruction, and requires a degree past high school and doesn’t apply to occupations through which most staff purchase their talent by way of expertise outdoors of education. While I’m really amazed by the talents of a very good sushi chef, I feel we will all agree that this exemption doesn’t apply.

This brings us to the artistic professional employee exemption, which requires that an employer be capable of show all the following: (1) as you in all probability guessed, the employee have to be compensated on a wage or payment basis at a fee not lower than $455 per week; (2) the employee’s main obligation have to be the performance of work requiring invention, creativeness, originality or expertise in a acknowledged area of inventive or artistic endeavor. Based on the Division of Labor (“DOL”), the necessities for the artistic professional employee exemption are sometimes glad by actors, musicians, composers, soloists, inventive painters, writers, novelists, and others as set forth within the laws. In our example above, the questions will come right down to how typically the chef can change and range the menu. Nevertheless, provided that getting ready sashimi is just chopping raw fish in a talented method and nigiri is doing the identical however placing the uncooked fish on prime of rice, there’s going to be a large element of the job that includes no creativity. Furthermore, most sushi rolls have been set on the menu for years and are commonplace. Thus, at greatest the employer can argue that there is some creativity in creating one or two special sushi rolls per week. As a wage and hour lawyer, I think that his won’t suffice both.

Thus, Kim seems to be to be in excellent shape as his additional time wage theft declare strikes ahead.

In case you consider that your employer is just not paying you all your wages for all your lawfully earned extra time compensation at a fee of 1 and half occasions your normal wages as required underneath the Federal Truthful Labor Requirements Act or Ohio Minimum Truthful Wage Requirements legal guidelines or you’re an nonexempt worker that has been misclassified as exempt or unbiased contractor, contact the attorneys at The Spitz Law Firm immediately for a free and confidential preliminary session. The wage and hour legal professionals at The Spitz Law Firm will give you the most effective options on your extra time pay dispute state of affairs. When you even assume that you may be entitled to extra time pay that you are not being paid, name our Cleveland attorneys at (216) 291-4744. Name our Columbus attorneys at (614) 335-4685. Name our Cincinnati attorneys at (513) 818-3688. Call our Toledo attorneys at (419) 960-5926.


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