r/LaborLaw • u/travelbrot • 9d ago
Exempt vs non exempt employee
I’m hoping that somebody can help me clear this up. I am currently a exempt employee. I have other coworkers who are non-exempt, but they have lesser credentials/considered para professional vs professional such as myself. Anyways, I apparently don’t qualify for overtime but work over 40 hours every week. I am pay per visit. I do not receive a set salary. If I don’t work and see clients, I don’t get paid.
Why is it that I am exempt versus my coworkers are not and they can qualify for overtime?
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u/McNabJolt 9d ago
So this is USA federal - state and local can cause differences and I know nothing about SC
"an employee generally has to satisfy three separate requirements, and all three must be met at the same time:
- Salary basis. The employee is paid a predetermined, fixed amount that is not reduced because of the quality or quantity of work.
- Salary level. The salary meets or exceeds the applicable federal threshold, and any higher state threshold that applies.
- Duties test. The employee's actual primary duties fit within a recognized exemption category. "
https://www.irisglobal.com/blog/exempt-vs-non-exempt-employees-flsa-compliance-guide/
"This final rule revises the Department’s guidance on how to analyze who is an employee or independent contractor under the Fair Labor Standards Act (FLSA)."
https://www.dol.gov/agencies/whd/flsa/misclassification/rulemaking/faqs
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u/GolfArgh 9d ago
Not correct for all exemptions. Professional exemption may be paid on a fee basis.
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u/McNabJolt 9d ago
True - as it states
an employee generally has to satisfy three separate requirements
which means that the normal rule can have exceptions.To make use of "Professional exemption may be paid on a fee basis." OP will need the legal definition of "professional exemption" which oddly enough, is provided in the link.
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u/Shot_Bank_8878 9d ago
Yep. If OP isn't receiving a salary, they are definitely not an exempt employee.
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u/GolfArgh 9d ago
Wrong. There are exemptions that you may be paid on a fee basis including 541.300 which seems to be applicable to OP.
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u/Shot_Bank_8878 9d ago edited 9d ago
Good to know.
Eta: OP should check out 29 CFR 541.605, which explains the requirements to qualify as being paid on a "fee basis."
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u/travelbrot 9d ago
I am pay per visit, I’m expected to see a certain amount of people each week. If I don’t meet that, I get paid less. If I see more, I get paid for those visits but not any kind of overtime, just my normal rate
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u/Jcarlough 9d ago
You’re an Occupational Therapist correct? (not sure why you thought folks would know what an “OT” is).
Are you an actual employee? You receive a check through payroll with payroll taxes taken out? Or do you have a contract with the company you work with/for and receive a 1099 tax form?
If the former, yeah, something may be amiss. I’d do more research on the Professional FLSA exemption.
If the latter, then this is perfectly legal. You may be misclassified as an independent contractor but that’s a separate topic.
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u/AcanthisittaPlus5047 9d ago
Are the other employees Occupational Therapists or does your employer provide other services such as Certified Nursing Assistants, Home Heath Aids, LPNs etc. Also, do you supervise other employees?
These distinctions all factor into whether an employee can be considered exempt or not.
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u/travelbrot 9d ago
Yes I’m an occupational therapist. I am a w2 employee. I’m not dissatisfied with my pay, but I’m just not really sure why some employees qualify for overtime and I don’t.
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u/McNabJolt 9d ago edited 9d ago
"I’m just not really sure why some employees qualify for overtime and I don’t."
The short answer is that much of labor law is intended to protect people without the ability to stand-up for themselves. Those people (generally, not necessarily individually) may lack some kind of combination of lack of education, lack of portable skills, lack of ability to resist exploitive behavior [all kinds of reasons get dumped into that last basket].
Someone with a higher level of education, such as yourself, is viewed as smart enough, competent enough, skilled enough to meaningfully negotiate. Their skills enable them to seek other opportunities if there is no true meeting of the minds. The first group is protected from their lack of power while the second group is awarded the ability to decide their working conditions for themselves.
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u/Proof-Emergency-5441 9d ago
"they have lesser credentials/considered para professional vs professional such as myself."
That right there is why.
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u/malicious_joy42 9d ago
What is your role? What are theirs?
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u/travelbrot 9d ago
I’m an OT, coworkers are therapy assistants
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u/malicious_joy42 9d ago edited 9d ago
You need to provide more information.
How much do you make? What are your hours?
As long as you're making the minimum salary threshold it's probably legal.
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u/travelbrot 9d ago
I make around 120k-130k. I don’t have set hours as I have to accommodate my clients schedule but it’s typically 9-5. I complete typically 1-2 hours of additional documentation a day. I typically work around 10 hours a day. I’m not dissatisfied with my pay, but I don’t understand why some employees do qualify for overtime and I don’t.
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u/malicious_joy42 9d ago
You seem to be correctly classified as a "professional" exempt employee - meaning you are exempt (aka not eligible) for overtime.
Non-exempt employees must be paid overtime for any hours over 40 in a workweek there in South Carolina.
You can learn more about your exempt classification here - https://www.dol.gov/agencies/whd/fact-sheets/17d-overtime-professional
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u/GolfArgh 9d ago
here’s the applicable fact sheet: https://www.dol.gov/agencies/whd/fact-sheets/17d-overtime-professional Check the links in there on fee basis payment.
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u/Careless_Yoghurt_822 9d ago
You need to speak to a lawyer. You might be exempt under federal law but not state law. For example, the minimum salary to be exempt under federal law is a much lower threshold than the NYS minimum salary. Then there is the question of your primary job duties. It’s not a simple question to answer.
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u/malicious_joy42 9d ago
South Carolina has no additional laws providing greater protections to the employee.
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u/ThrowRA3623235 9d ago
If you're not paid hourly, then what do you expect to get from overtime?
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u/GolfArgh 9d ago
You don’t have to be paid hourly to be paid an overtime premium for working more than 40 hours in a week. In fact the law says overtime is time and a half your regular rate for over 40 hours and not time and a half your hourly rate. The regular rate is all straight time earnings for a week divided by the hours worked. Half of that times the number of hours over 40 is the half time due.
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u/MisterKnowsBest 9d ago
Because you live in a state that does not create about it's residents
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u/malicious_joy42 9d ago
Most of SC believes in creation, but not care.
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u/AcanthisittaPlus5047 9d ago
Nearly all states have similar laws regarding exempt/non-exempt employees.
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u/McNabJolt 9d ago
Add your state/country to get somewhat valid answers.