You probably assume that you’re exempt from receiving overtime pay if you have a salary. It’s actually more complicated than that. Some salaried employees may be exempt, while others earn a salary but have been misclassified as exempt.
Our New York wage and hour lawyers would like to unpack the idea of being exempt from overtime. We’ll look at the three criteria that must be met to be exempt from overtime, why being a salaried manager does not mean you are automatically exempt, specific job duty exemptions for executives and professionals, and what you can do if you think you’ve been misclassified as exempt by your employer.
The Bell Law Group can help you if you believe you’ve experienced overtime misclassification and are owed back pay. Our attorneys are ready to help you seek the OT wages you’ve earned. We’re on your side. For a free and confidential case review, contact our employee rights law firm today.
Key Takeaways:
- Exempt means that you are not eligible for overtime pay. Non-exempt means you are eligible for overtime. These classifications apply to salaried employees.
- To be exempt from overtime, you must be a salaried employee, make more than the minimum salary threshold for your state, and have job duties that qualify for exemption.
- It’s possible to be misclassified as exempt from overtime even if you have a salary and your job title says that you are a manager.
- If you’ve been misclassified as exempt, you may be eligible for overtime back pay. You should create independent time logs, compile all of your paychecks, and speak with a wage and hour attorney about your potential next steps.
What Exempt and Non-Exempt Mean for Overtime Pay
In simple terms, exempt means that you are not eligible for overtime pay. Non-exempt means that you are eligible for overtime for work beyond 40 hours.
It seems straightforward for hourly workers, yet salaried employees could get OT as well.
Why Salary Doesn’t Make You Automatically Exempt
Many people assume that overtime is only given to hourly workers. That’s not always true. Salaried employees may be entitled to overtime depending on how they are paid, how much they are paid, and what they do while working.
If you’re salaried and regularly working more than 40 hours a week, you may be non-exempt and owed overtime. This is because three criteria need to be met to be considered exempt from overtime.
Three Criteria That Determine Exempt or Non-Exempt Status: Salary Level, Salary Basis, Job Duties
There’s a three-pronged test to determine if you are truly exempt from overtime pay as a salaried employee.
- The Salary Basis Test: You must receive a fixed salary, and this salary does not change based on the hours they work or the quality of their work.
- The Salary Level Test: You must earn more than the minimum salary threshold at the federal or state level.
- The Duties Test: Your job duties must meet the exemption requirements. This often involves employees in managerial positions with at least two employees under their supervision. The manager would also have meaningful input regarding hiring and firing of employees.
Let’s look at the minimum salary level first and then get into how your job duties affect your classification as exempt or non-exempt.
Federal and New York State Federal Thresholds for Salaried Employees
There are different salary thresholds defined by the Fair Labor Standards Act (FLSA) and New York State labor laws. Let’s look at both the federal and New York State salary thresholds.
The Federal Salary Threshold
The 2026 FLSA salary threshold for executive and administrative employees is $648 a week ($35,568 per year).
You’ll note that there are additional salary levels considered for highly compensated employees, people who work in the motion picture industry, and employees in U.S. territories such as Puerto Rico, Guam, and American Samoa.
The Salary Threshold in New York
New York has different laws regarding the salary threshold, and these numbers vary depending on where you live. Here is the 2026 New York State salary threshold for executive and administrative employees:
- New York City, Westchester County, Nassau County, Suffolk County: $1,275 per week
- The Rest of New York State: $1199.10 per week
Exploring Executive, Administrative, and Professional (EAP) Exemptions
The Department of Labor’s Wage and Hour Division lists federal overtime exemptions for executives, administrators, and professional employees (EAP). Let’s look into each of these groups individually regarding overtime pay.
The Executive Exemption: Do You Actually Manage the Enterprise?
An exempt executive must be primarily focused on managing the enterprise or managing a department or subdivision of the enterprise. The executive must also direct the work of at least two other full-time employees and have a say in company decisions regarding hiring, firing, and promotions.
The Administrative Exemption: Independent Judgment vs. Manual Labor
An exempt administrator must be primarily focused on office work related to the general business operations or management of the business. They should not be focused on performing manual labor, and they should exercise independent judgment when it comes to significant business decisions.
Professional Exemptions: Creative, Learned, and Computer-Related Roles
An exempt professional must be primarily responsible for work that requires advanced knowledge, such as science or learning. This kind of advanced knowledge is typically acquired through specialized education or instruction.
What If My Job Title Says I’m a Manager, But I Have No Authority?
Some people are given the title of manager but do not engage in any kind of employee supervision. These managers in title only have experienced job title inflation.
Job title inflation is when you are called a manager, but your duties resemble those of other employees. This is why the exemption test considers what your role is and what you do on a daily basis in addition to your salary level.
To put it another way, if you are a manager in name only, do not assume that you are exempt from overtime pay even if you have a salary. You may have been misclassified as exempt by your employer, and you may be entitled to back pay for unpaid overtime if you regularly worked more than 40 hours a week.
If you want to learn more about this type of exempt misclassification, read our blog post on supervisor/manager job title inflation to avoid paying overtime. This trick is just one way companies try to avoid fairly compensating their employees.
Common Examples of Salaried Employees Being Misclassified as Exempt
Here are just a few examples of how companies misclassify their workers as exempt in order to avoid paying overtime:
- Managers in Title Only: As we noted above, you may have the job title of manager or lead, but your duties involve regular daily work rather than supervising or managing others.
- Supervisors Who Wind Up Doing Production Work: Related to the above, you may be considered a supervisor in your role, but you may have a lot of manual work or routine production work each day rather than managerial tasks.
- Docked Pay for Missing Hours or Quality/Quantity: Even though you may be salaried, your employer may dock your pay for missing hours or for failing to produce a certain amount of work. That’s a red flag that you’ve been misclassified and could be non-exempt.
- Salaried Under the Payment Threshold: If your weekly salary fails to meet the NYC and NYS salary thresholds noted above, you might have been misclassified as exempt.
- Misclassification of IT Employees: While a lot of companies may classify their IT workers as exempt, it really depends on their duties in their role and the skills they’ve acquired in the course of their career.
These are just a few examples of how employers cheat workers out of fair pay. There are many other examples of wage theft tactics by companies. Our New York attorneys can identify these tactics and call them out when you discuss your situation with us.
How Do I Seek Overtime Back Bay If I’ve Been Misclassified as Exempt?
If you believe that you’ve been misclassified as exempt from overtime, here are a few things you should do right now:
- Log All of Your Time and Tasks: Keep an independent record of the work you do, the hours you work, all correspondence with supervisors and managers, and any off-the-clock work.
- Take Screenshots and Create a Digital Footprint: If you’re unable to download any documents, take screenshots for your records. You can also consider noting any time you log into work portals. If you work in-office or at a physical workplace, you can turn on your GPS on your phone. This creates a record of you being at your workplace at specific times.
- Save All Paychecks and Stubs: Hold on to all of your paychecks and pay stubs since you began working at your company. Pay special attention to paychecks since you entered the role that’s considered exempt.
- Speak with a Wage and Hour Lawyer: Contact the unpaid overtime attorneys here at The Bell Law Group to review your situation and find out if you are eligible for OT back pay.
For a more detailed exploration of this, check out our past blog post on salaried employees working 60-hour weeks without overtime pay.
How Much Unpaid Overtime Could I Receive If I’ve Been Misclassified as Exempt?
If you’re a New York employee, you may be eligible for up to six years of OT back pay. New York Labor Law (NYLL) § 198(3) similarly has a six-year statute of limitations to seek this overtime back pay.
In addition to seeking unpaid overtime, a misclassified employee may also be eligible for liquidated damages. Liquidated damages are paid at 100% of any unpaid wages, effectively doubling how much you receive in unpaid overtime.
Six years sounds like a long time to file a legal action, but it’s best to contact our New York wage and hour lawyers as soon as you can. We want to get you the pay you’re owed.
Why Workers Trust the Lawyers at The Bell Law Group
Founded in 2002, The Bell Law Group is here to make sure workers are treated fairly. Our team of employee rights attorneys have helped many workers over the years, including state and federal employees. We fight for what’s fair, and we want to make sure you get all of the wages you’ve earned.
We’re Focused on the Rights of Workers
The Bell Law Group does not spread itself thin. Our law firm focuses on the rights of workers and making sure that employees are protected and properly compensated. In addition to unpaid overtime cases, we’ve worked on many equal pay claims and provided representation for federal workers.
We Have More Than a Century of Combined Experience
Our team of employment law attorneys have more than 100 years of combined experience practicing law. We are proud to advocate for workers in Nassau County, Suffolk County, and the New York metropolitan area. We’ve also represented federal employees based all over the United States.
We Have a Strong Record of Employee Advocacy
Over the decades, we’ve had our share of notable success. This includes a $350,000 settlement for unpaid overtime and other New York Labor Law violations, and unpaid wages for restaurant workers who were paid only in tips. We encourage you to look through our past workers’ rights case results to get a sense of what claims we handle.
We Offer Free and Confidential Case Reviews
If you’re worried about upfront costs or details getting leaked, we understand. Rest assured that consultations are absolutely free at The Bell Law Group. All details we discuss will remain private, so you do not have to worry about jeopardizing employment at your current company or your future career goals.
Think You’ve Been Misclassified as Exempt? Contact Our Law Firm for Help
Are you concerned that you’ve been misclassified as exempt? Do you wonder if you qualify for unpaid overtime? The Bell Law Group can explore these issues with you and determine the best way to get the unpaid overtime you’ve earned. For a free, confidential, and no obligation consultation, contact our employee rights lawyers today.
