Overtime Lawyer Blog

Just because you receive commissions doesn't necessarily mean that you don't qualify for overtime. The FLSA has carved out an exemption to overtime pay for people who receive commissions as a part of their salaries, but it is a very narrow exception. It is possible that people working in malls all across Georgia should be talking to an employment attorney about this issue.

The exemption, Section 7(i), applies to retail and service establishments, which are defined as "establishments, 75% of whose annual dollar volume of sales of goods or services (or of both) is not for resale, and is recognized as retail sales or services in the particular industry."

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This may be a rare occurrence in Georgia employment law, but a federal court in New York has just ruled that a paralegal who also worked as an independent contractor, both positions being with the same firm, does not fall under the ““highly compensated employee” overtime exemption of the FLSA, even though her firm paid her in excess of $100,000 per year.

The case, Magnoni v. Smith & Laquercia, S.D.N.Y., No. 07-9875, (9/11/09), arose under a set of circumstances that may be apart from the norm, but it is certainly informative.

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Many companies in the Atlanta area now require that their employees take online training classes, or classes at outside facilities. Should the time spent taking this training be compensated? The FLSA covers this issue in general, and a recent DOL opinion letter shines an interesting light on some facts that may come up while employees are taking classes on their computers.

Generally, the FLSA says about online training that it is not compensable if the following four criteria are met:

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One of the requirements in the FLSA to prove that an employee is under salary and not an hourly employee for the purposes of paying overtime is the concept of a “constant weekly wage,” where the employee gets a set salary for set hours worked per week. Any variance on that theme can result in the employee collecting overtime.

But there are some jobs that just don’t fit that description. There is an exception to that “constant wage” rule, but it is very narrow and very specific and needs to be in writing. It is called a “Belo Plan,” named after the Supreme Court case that allowed the exception, (Walling v. A.H. Belo Co., 316 U.S. 624 (1942)), and provides for a constant wage, even though overtime is actually worked.

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Atlanta is replete with people who work in the field of home health care. Home health care workers have a special set of regulations under the Fair Labor Standards Act.

For instance, a home health care worker may or may not be entitled to overtime pay, depending on the circumstances of employment.

First, the definition. A home health care worker is someone who provides home health care services for individuals who (because of age or infirmity) are unable to care for themselves. They may be employed by the household itself, or an agency, or may just freelance.

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Most salaried employees don’t get overtime pay. But is the reverse true—does an employer have to pay full salary if the employee isn’t at work? Some deductions from pay will be proper, but some may cause an employee to lose that exempt status and qualify for overtime.

Allowable deductions to your salary, according to a July 2008 Department Of Labor fact sheet, include where an exempt employee: is absent from work for one or more full days for personal reasons other than sickness or disability; for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a plan of providing compensation for salary lost due to illness; to offset amounts employees receive as jury or witness fees, or for military pay; for penalties imposed in good faith for infractions of safety rules of major significance; or for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions. Also...

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Nobody may work harder, and nobody may have more job satisfaction, than a nurse. But with all of those hours put in, do nurses generally qualify for overtime pay, or are they exempted under the FLSA?

The answer to that question may depend on what kind of nurse you are, what your duties are, what your educational background is, and how much money you are paid. A July 2008 advisory letter from the US Department of Labor lays out all of the various considerations in deciding whether or not a nurse should receive overtime.

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Are reporters entitled to overtime pay? Will they write about it more if they are?

Even with the well- documented decline of print media, there are certainly enough reporters left on the job for this to be an ongoing issue. And reporters facing layoffs will certainly have any number of questions that could be directed to an employment attorney.

The issues are on a fine enough line that each communications media employee’s situation will need to be treated on a case-by-case basis.
In fact, if you have recently been let go by a newspaper or magazine, or are on the edge, and are looking for some legal advice, you may very well run into questions of unpaid overtime, depending on how your job can been classified.

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