​A Human Resource professional in Marco Island, Florida asked: How do I know if I misclassified an employee as exempt from overtime?

It is quite common still for employers in Florida to misclassify their employees, whether it is done intentionally or unintentionally. Often, an employee who feels they are classified incorrectly will report the employer to the Department of Labor (DOL) or hire a Plaintiff's lawyer.  These employees often feel that they  should be a non-exempt employee (hourly), rather than an exempt employee (salary) because they are working long hours and not being paid overtime. When this is the case, an employee may feel taken advantage of by his or her employer because they are working so much but may not be compensated properly. So the question that must be asked is what does exempt and non-exempt mean? And how are they different?

The FLSA (Fair Labor Standards Act) requires many employees to be paid minimum wage and overtime, but provides for an exception for many eployees who are deemed professional or white collar and who also receive the appropriate salary.  This is why they are referred to as "exempt." Essentially they are exempt from the minimum wage and overtime provisions of the FLSA.  In general, nearly all "blue collar" workers are non-exempt from the minimum wage and overtime provisions of the FLSA. 


An exempt employee is one who is paid a salary and meets the duties test of the specific exemption. An exempt employee often does not keep track of the hours he or she works and thus does not get paid overtime. A non-exempt employee is one who is typically paid hourly, thus a non-exempt employee will keep track of the hours he or she works and will be entitled to compensation for working overtime hours. This means that, in Florida, a non-exempt employee must be paid overtime if he or she works more than 40 hours in a week.

To determine if a worker should be an exempt or a non-exempt employee, the court will consider various factors. However, the ones worth mentioning are whether the employee has discretion and independent judgment to act on behalf of the employer, and/or whether the employee has managerial functions and is overseeing employees.


If the employee has independent discretion to make important decisions on behalf of his or her employer, there is a likelihood that he or she is classified properly as a salaried exempt employee. Or if the employee’s position is managerial and he or she oversees employees, including hiring and firing, then there is also a likelihood that he or she is properly classified as an exempt employee. However, this test is not exhaustive and there are many more factors that come into play.


If you are not sure whether you are properly classifying employees as "exempt" from the minimum wage and overtime and recordkeeping requirements of the FLSA, contact our firm today to find out.  This is a very detail-oriented law and many employers make small mistakes that cost thousands of dollars in fines when the Department of Labor discovers this. 


Also, if an employee sues and the employer made errors in classifying the worker as exempt, the employer will not only have to pay back the employee, and pay its own lawyer to defend the FLSA lawsuit, but will have to pay the legal fees charged by the employee's lawyer. 

Law Office of David Miklas, P.A.

management labor & Employment law