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Should you be getting overtime?

If you've been putting in extra hours, you might be entitled to extra pay.

Whether you're hourly or salaried, blue-collar or white-collar, if you've been giving your boss more than 40 hours per week, you're due time-and-a-half for each hour of overtime, unless you fit into one of the exceptions.

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"The basic rule is that employees are entitled to overtime," unless the employer can show that they fall into one of the exceptions, says David Borgen, co-chair of the wage and hour committee for the National Employment Lawyers Association and partner with the California-based firm of Goldstein, Demchak, Baller, Borgen & Dardarian. 

The employer has the burden of proving the employee fits the category, he says.

If employees "think they are being cheated on their pay, they probably are -- and they should investigate," says Borgen. "Employees are woefully underinformed and employers aren't much better."

"The issue is not if you go over 40 hours," says Rachel Geman, partner with the firm of Lieff Cabraser Heimann & Bernstein LLP. "The issue is when you go over 40 hours."

Do you qualify for overtime? Here's the basic test under the federal rules. If you can answer "yes" to any of these questions, you're probably entitled to overtime.

Do you qualify for overtime?
Do you get paid by the hour?
Do you make a salary that goes down if you miss work?
Is your weekly salary consistent, but less than $455 a week?

If you meet any of these criteria, and aren't getting overtime for extra hours, "don't panic, but it's a real wake-up call to educate yourself," Geman says.

Get paid by the piece or by the trip instead of by the hour? That alone doesn't exempt you from overtime pay, says Todd Nierman, shareholder in the Indianapolis office of Littler Mendelson PC. The fact that you are "not being paid hourly is not going to change that," he says.

The exemptions
Some groups of salaried people are exempt from overtime pay. To be included in one of them, you must first meet three criteria.

3 criteria make you exempt from overtime:
Receive flat salary, rather than hourly wage.
Earn the same amount each pay period (regardless of how many days or hours you've worked).
Weekly salary is equal to or greater than $455. (The minimum may be higher in some states.)

In addition to the three tests, there are also a series of job-duties tests. If you perform one of the following duties, you may be exempt from overtime.

Duty tests
Here are a few of the most common exemption categories
6 most common exemptions:
1.The executive exemption
2.The administrative exemption
3.The professional exemption
4.The outside sales exemption
5.The inside (retail) sales exemption
6.The computer exemption

1. The executive exemption: Is your primary duty supervising two or more full-time people? If so, the law says that you don't get overtime. "Supervising," has to mean that you've got some clout -- the ability to hire, fire, discipline, etc. If you're just the head assistant to the assistant manager and "supervising" consists of reminding the night staff to leave their Nintendos at home, that doesn't count.

Be sure to examine your actual duties, not your title. "Just because someone's called a manager doesn't mean they're exempt from overtime," says Geman.

2. The administrative exemption: This is one of the most misinterpreted exceptions. It covers people who impact the management or business of their employer or the employer's customers. Often, it's misconstrued to include secretarial staff, but it really covers people such as human resource heads and chief accountants, who may not directly supervise anyone, but who make decisions on behalf of the firm. The test: You have to exercise independent judgment and discretion. Do you have the power to make decisions unsupervised? Do you formulate or affect management policies? Can you speak for the employer or enter into contracts on matters of financial importance without supervision? Can you waive established policies? Do you offer expert advice? If so, you might qualify in this category.

 
 
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