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Certain categories of employees are not entitled to receive overtime pay because they are considered "exempt" from the Fair Labor Standards Act's (FLSA) overtime rules. One of these exemption categories is the Executive Employee Exemption.

Exempt executive employees generally are responsible for the success or failure of business operations under their management. Other critical elements are (1) whether management is the employees primary duty, (2) whether the employee directs the work of two or more full-time equivalent employees, and (3) whether the employee has the authority to hire/fire other employees or, alternatively, whether the employees suggestions and recommendations as to the hiring, firing, advancement, promotion or other change of status of other employees are given particular weight.

For an employee to be considered an exempt executive, he or she must be compensated on a salary basis, with a weekly salary of at least $455.00. In addition, it is crucial that managerial responsibilities constitute primary aspects of the employee's duties. Some examples of managerial duties include:

  • Apportioning work done by other workers;
  • Have authority to waive or deviate from established policies;
  • Have authority to formulate or interpret policies;
  • Have the authority to hire or fire other employees, or their suggestions with regard to hiring, firing, promotion, or any change of status of other employees are given particular weight. See, e.g., Ramos v. Baldor Specialty Foods, Inc. 687 F.3d 554 (2nd Circ. 2012).

In New York and across the United States, tens of thousands of non-executive employees are unlawfully misclassified by their employers as exempt. If you believe that you have been misclassified, you should speak with an experienced wage lawyer. Under the law, the burden is on the employer to establish that an employee is exempt. McLean v. Garage Mgmt. Corp., 819 F.Supp.2d 332, 337 (S.D.N.Y.2011) (citing Reiseck v. Univ. Comm. of Miami, Inc., 591 F.3d 101, 104 (2d Cir.2010)). "Because the FLSA is a remedial statute, its exemptions are construed narrowly against the employer." Kahn v. Superior Chicken & Ribs, Inc., 331 F.Supp.2d 115, 117 (E.D.N.Y.2004) (citing Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960)).

If you believe that you have been unlawfully deprived of overtime pay, contact the experienced employment lawyers at Rapaport Law Firm: (212) 382-1600. Attorneys Marc Rapaport and Christine Ortiz have handled individual and class action wage claims on behalf of employees in the restaurant, car wash, financial services, medical billing, grocery, construction, and real estate industries.
Marc Rapaport

Millions of American workers are misclassified by their employers as "exempt" from overtime. If you have questions regarding your status under the FLSA, call New York wage attorney Marc Rapaport at (212) 382-1600.
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Phone: 212.382.1600
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