"To be exempt, an employee must fall under one of these categories and be paid on a salary basis," says Rob S. Ghio, partner and head of the employment-law group at the firm Arter & Hadden in Dallas.
The exemptions hinge on the actual duties performed, however, not on the job title or method of payment.
"Exempt workers manage, think, direct, supervise, and establish," says Neil Martin, a partner in the labor and employment section of Houston law firm Gardere Wynne Sewell. "The more routine the task, the more mundane the assignment, the more manual the work, the less is likely that the workers are exempt."
More than 60 percent of the job growth over the past decade was among employees classified as managers and professionals, jobs in which long workweeks are considered typical.
Nearly 30 percent of managers and professionals work 49 hours a week or more, according to the latest data from the Bureau of Labor Statistics. Employers often toss these employees, along with administrative and sales workers, into the exempt classification, regardless of the actual tasks they perform.
The most common overtime pay complaint today rests with the white-collar classifications, and employers are losing more of these cases. Last year, Rite Aid Corp. paid $25 million to 3,000 managers and assistants. Bank of America Corp. settled with some 6,000 personal assistants for $22 million.
Employers may forget that "the law looks beyond form to substance," notes Linda Usoz, an employment attorney in the San Jose office of Coudert Brothers. "Calling an employee a 'senior advisory engineer,' or some other title that connotes management, does not make the position exempt."
Last Year, Pacific Bell paid $35 million to settle a suit by 1,500 engineers who alleged they worked 50 hours a week but were paid for only 40.
"One red flag is if an employee works alone and does not exercise independent judgment. Such employees may very well be hourly employees and entitled to overtime pay," says Robert Skousen, head of Los Angeles law firm Skousen & Skousen.