I Believe that my Employer is Wrongfully Classifying me as Exempt, What Can I do?

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“My question has to deal with Employment/Labor law.A I currently work as a computer support technician.A My primary duties are installation and repair of computer systems, and troubleshooting basic network problems.A I have read over the FLSA, and believe that by the definition of my job duties, I cannot be considered aO~exemptaO(TM), based on the computer-related section of the FLSA.A My employer does have me classified as exempt.

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

They expect work over 40 hrs a week, and I am also aO~on callaO(TM) for a week at a time, 1-2 weeks a month aO” required to be within 30 minutes of my job, and be able to respond.A The aO~on callaO(TM) duties are 24/7 and there is no additional compensation for it.

The first part of my question deals with the FLSA, but the second is just a curiosity.A I am in PA, but as the FLSA is a Federal law, I wouldnaO(TM)t think that would make a difference.”

It is not uncommon for employers to attempt to classify an employee as “exempt” even when it’s clear that a court would never uphold such a classification. Generally speaking, federal laws like the Fair Labor Standards Act (FLSA) trump state laws, however there are various exceptions and complicated ways in which the laws mesh together. Employment law is one of those subject areas where the interaction between state and federal laws can be pretty complex, requiring an expert to render a reliable opinion.

Employers are regularly sued over treating non-exempt employees as exempt and it’s not uncommon to see judges ordering companies to pay thousands or even millions of dollars in back wages and penalties to employees. Yet the “savings” to companies from violating the law can be substantial and waiting until they day they get sued is usually worth the risk to them.

You should probably contact a lawyer specializing in employment law in your county (since you’re in Pennsylvania, try the referral service listings at the PA Bar Association website, www.pabar.org/public/membership/Irsblurb.asp. In PA, you can get a 30 minute consultation with a participating attorney for $30, and s/he should be able to answer your question and advise you on your rights.



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Author: Ray Everett-Church, Esq.

Ray Everett-Church is a privacy and security consultant with PrivacyClue LLC and is co-author of "Internet Privacy for Dummies"

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