However, says Bill Nolan, managing partner of the Columbus office of Barnes & Thornburg, an “accurate job description can be critical to determining whether a position is exempt or non-exempt under the federal Fair Labor Standards Act (FLSA).” The FLSA applies to virtually all employers. While it sets the minimum standards for overtime pay in the United States, individual states and jurisdictions are permitted to enact their own laws over and above what the FLSA provides. For example, the Seattle city council recently passed legislation enacting a $15 an hour minimum wage. That new law will goes into effect soon.

He cautions it’s not whether an employee earns a salary or an hourly wage that determines whether they can be classified as exempt or non-exempt from overtime pay laws. “For the primary exemptions, an employee must be salaried and perform duties that are recognized as exempt duties under federal regulations. A job description signed off on as accurate by the employee is powerful evidence of the nature of those duties,” says Nolan.

Determining classifications
Three questions must be answered to determine whether a job can be classified as exempt or not. According to Young, they are:

• The employee’s salary level
• The employee’s salary basis
• Job duties

Another consideration is the employee must earn at least $455 weekly for the possibility to exist they can’t earn overtime pay. If the employee performing office work or non-manual labor earns at least $100,000 a year or more and performs one of the duties of an exempt executive, administrative or professional employee as defined in the applicable standards, the employee may be exempt from overtime pay.

While it adds confusion to the mix, the term ‘exemption’ also applies to several classifications of jobs. For example, positions can fall under exemptions such as administrative, executive, professional and creative, to name a few.

In Young’s experience, two exemptions account for the majority of litigation: the executive and the administrative. Being in a non-exempt position means an employee must be paid time and a half for any hours over 40 worked in a given week.

Don’t misclassify
Employers have gotten themselves into legal difficulties when they misclassify an employee. For example, say a company owner labels a job as managerial, a position that is generally exempt under the FLSA, but, in fact, a closer investigation dispels the assumption.

How to know? Key to the proper classification of a position is whether the employee “exercises discretion or independent judgment with respect to matters of significance,” says Young. Just because a job is labeled as one that is normally classified as exempt doesn’t necessarily mean it truly is.

“A job title can suggest an exemption but if the actual job duties are not consistent with the exemption,” the argument can be made the employee can earn overtime pay.

“Misclassification is something employers need to be wary of. Misclassifications are often the basis of litigation,” says Young.

A recent Arizona case supports Young’s claim. Nearly 1,500 managers for Auto Zone stores were classified as exempt, but the group argued their jobs did not meet the thresholds for that determination, namely exercising discretion or individual judgment under the administrative exemption or meeting the definition for an executive exemption. The case was settled by the parties just before the trial was set to begin.

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Tami Kamin Meyer is an Ohio attorney and writer. She may be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. or @girlwithapen.