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Monday, January 31, 2011

Pennsylvania Overtime Lawyer Explains the Basic Rules

The Fair Labor Standards ("FLSA") governs the payment of overtime to employees.  In Pennsylvania (as in many states) there is a state law that protects you as well; it is known as the Pennsylvania Minimum Wage Act ("PMWA").

Here are some buzzwords that you are likely to come across when considering your rights to overtime:

Exempt Employees: Employees who are NOT entitled to Overtime;

Non-Exempt Employees:  Employees who ARE entitled to Overtime;

Salaried Employees:  Employees who are paid an annual salary; although all employers treat salaried employees as exempt employees, that is not necessarily the case;

Exempt Professionals:  If you have an advanced degree that you use in your job you are an exempt employee; however, the mere fact that you have an advanced degree does not mean that you are not entitled to overtime.  For example, a person with a law degree who provides only paralegal services is still entitled to overtime;

Exempt Executives:  Generally, if you spend more than 50% of the time running the business or one of its departments, and have the authority to hire and fire employees, you are exempt from receiving overtime.  This is referred to as the Bona Fide Executive exemption;

Administrative Assistant Exemption:  if you perform office work that is DIRECTLY RELATED to management policies or general business policies, and exercise discretion and independent judgment on a regular basis, you are exempt from receiving overtime;

Outside Salesperson:  If you go on the road and sell products or services, and spend at least 80% of your time doing that, you are exempt from overtime under Pennsylvania law.  Obviously, if you spend less than 80% of your time doing outside sales, then you are entitled to overtime under Pennsylvania law. 

NOTE:  Many commissioned salespeople are not in fact exempt, despite being classified as exempt by their employer.  Typically, the rationale provided by the employer for exempting the employee from overtime is that the employee is deemed to be an outside sales person.  If you are paid on a commission, and are not in fact exempt, then you must, in addition to being paid overtime, be paid at least the minimum wage for all hours worked.

Computer Professionsals:  Under federal law, computer professionals are not entitled to overtime. However, under Pennsylvania state law, computer professionals are entitled to overtime.

Remember, the key is WHAT YOU DO - not how you are classified by your employer.  If you think you are owed overtime, you may want to seek an attorney.  FLSA prohibits the termination of an employee in retaliation for his/her demand for overtime. 

NOTE:  is not unusual for a company to classify a worker as an independent contractor in order to avoid overtime obligations.  While it is true that independent contractors are not entitled to overtime, it is equally true that, it is a common practice to incorrectly classify workers as independent contractors when in fact they are employees.  Therefore, you should not abandon your rights to overtime merely because you have been told you are an independent contractor, or because you agreed to work as an independent contractor.  The fact is, we've had many cases where independent contractors were eligible to recover overtime pay because they had been misclassified.

If you have to sue because you are owed overtime, you can win double damages - that is, double the amount of overtime to which you were entitled but were not paid.

If you are fired/demoted/denied promotion because you requested/demanded overtime, and therefore suffer a wage loss, you can win double damages - that is twice the amount of wages you lost as a result of being terminated.  If in fact you you were also deprived of overtime to which you were entitled, you can recover that as well (and double the amount!).

If you have a claim either for overtime or unlawful retaliatory discharge due to your seeking overtime, we will handle your case on a CONTINGENT FEE basis.  That means we do not get paid unless you win.

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