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Category: California Employment Law
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Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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we own a tennis club. are tennis professionals that are paid

Resolved Question:

we own a tennis club. are tennis professionals that are paid hourly but control the lessons and clinics that they teach considered exempt employees?

They have all played college tennis and some are with us with o-1 visas?

thank you
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.
Good morning,

I'm Doug, and I'm sorry to hear of the confusion.

I'm a bit unclear as to what you are asking.

Are you asking whether you can claim that your tennis pros are salaried exempt employees---and not subject to overtime pay?

Or are you asking whether they may be classified as independent contractors?

Also, would you please confirm whether your question concerns NY or CA law.

Doug
Customer: replied 1 year ago.


new york......overtime


 


thank you


 


scott

Expert:  LawTalk replied 1 year ago.
Good morning Scott,

Thank you for the clarification.

In the US, a majority of jobs held by the nation’s employees are governed by the Fair Labor Standards Act (FLSA). Jobs are divided, in terms of wages payable and overtime wage eligibility, by whether the jobs are deemed to be Salary Exempt, or Non-Exempt positions. Non-exempt employees are entitled to overtime pay, while Salary Exempt Employees are not.

For salaried employees involved in sales positions, overtime pay depends on whether they are considered primarily outside sales, or inside sales (working in the employer’s store). Employees with primarily Outside Sales positions are not entitled to overtime pay, while those with Inside Sales positions are.

The test to determine whether a salaried employee is exempt or non-exempt for most other jobs other than sales depends on several factors:

A. The amount of monthly salary,

B. How the salary is determined, and

C. The type of work done by the employee.

Under the majority of circumstances, to be considered exempt, an employee must be:

1. Paid a minimum of $455 per week----which works out to $23,600 per year;

2. They must be paid on a salary basis---meaning whether they work 40 hours a week or 20 hours a week they earn the same minimum salary; and

3. They perform job duties which are considered exempt.

In almost all circumstances, only white-collar jobs may be considered Salary-Exempt. Whereas, jobs such as manual labor, working with your hands constructing items or repairing things, and workers who perform work involving repetitive operations with their hands, physical skill and energy may not be classified as Salary-Exempt.

With the while-collar jobs, there are further restrictions on which ones may be considered Salary-Exempt, and there are further tests applied to those positions. The primary tests of these positions looks at whether the employee:

1. Supervises at least two employees and whose job is primarily supervisory/management related, and has the authority to make decisions on behalf of the employer such as hiring and firing of employees.

2. Acts in an Administrative capacity in a position that involved non-manual labor related to management and/or the general business operations of the employer and requires the use of independent judgment by the employee over important matters of the employer’s business.

3. The third test for Salary-Exempt positions looks at whether the position is one which requires an advanced college decree---generally considered to be a Master’s Degree or higher. This is known as the Learned Professional exception. This exception generally expects that the work performed by the employee will be primarily intellectual in nature and like the Administrative and Supervisory exceptions, involve the exercise of discretion and judgment by the employee.

The botXXXXX XXXXXne is that, under the FLSA, Salary-Exempt employees do not have rights to overtime pay---regardless of the hours worked. They are entitled to their salary and nothing more. They may even be required to punch in and out or otherwise account for the time they spend working for the employer. The employer may even demand the Salary-Exempt employee work regular overtime hours without any additional pay or benefits.

I know that I have provided a lot of information, but it will be useful in evaluating all of your employees in the future.

As for the Pros, given what they do, and despite the fact that they may control the lessons and clinics that they teach, there really is no way that I can imagine that you could classify them as exempt from overtime. They simply don't fit into any exempted category of employee.

You may reply back to me using the Continue the Conversation or Reply to Expert link if you have additional questions; and if you do, I ask that you please keep in mind that I do not know what you may already know or with what you need help, unless you tell me.


Please remember to press the smiley faces/stars on the right of your screen when we are finished with our communication so I will be credited for my time in assisting you. Kindly remember to ONLY rate my answer when you are fully satisfied. If you feel the need to rate anything less than OK, please stop and contact me with whatever issue or clarification you may need. I will be happy to continue further and assist you until I am able to address your concerns to your satisfaction.

I wish you the best in 2013,

Doug
LawTalk, Attorney
Satisfied Customers: 27889
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
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