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Faye Lee
Faye Lee, Lawyer
Category: Employment Law
Satisfied Customers: 1522
Experience:  Have 30 years experience in labor/employment law.
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I am executive assistant to CEO in NJ. I was hired as ...

Customer Question

I am executive assistant to CEO in NJ. I was hired as non exempt at an hourly rate, annualized. I act 95% of the time under his direction and 5% of the time can make decisions on my own, e.g. ordering lunch for meetings. My boss knew I was working extra hours but did not instruct me to stop until about 2 months ago. I never claimed OT until I was recently told I was non exempt and am now required to keep a time sheet and submit it every week. eligible for OT so I provided HR with hours since 2-07. I am now told my position is exempt that HR jumped the gun in their earlier determination and I am now not eligible for OT. I am challenging this decision based on research on the FLSA website. Am I correct?
Submitted: 6 years ago.
Category: Employment Law
Expert:  Faye Lee replied 6 years ago.

Hello, you are most likely correct however if H/R told you that you were non exempt they must have had your job evaluated and determined that you were non exempt. You can not just change someone title just to avoid paying overtime.

Now some executive assistants are exempt and you should have your job evaluated to determine your status. Alot will have to do with what your job duties are and what supervision you work under.From what you described you are correct but I have no way to validate your job content and whether you manage others, etc. There are many people in your role but they have a wider job scope. I hope this has helped if so click accept.

Customer: replied 6 years ago.
In the event my position is deemed exempt, am I still entitled to the overtime since I joined the company from February 1 till now, when I was told my position was non-exempt, for which I did submit timesheets and was paid OT, however, was not paid the OT for the 13 months I was still considered non exempt? Also, is it fair for me to request a decision from the FLSA in the event my HR department holds onto their decision of the exempt position for my position. Since I work for the CEO I am fearful I might lose my job if I seek relief from the labor board.

Thank you.

Mary Ann
Expert:  Faye Lee replied 6 years ago.

I thought you stated H/R deemed you as non exempt and the CEO stated you were exempt. ???? You need to discuss your position with H/R. they are in a better situation to determine your status. However they may agree with the CEO because of the power.

IF you are non exempt and has been for the past two years you would be eligible to receive all time worked over 40 hours upto two years. However I would not think your company would not just pay you that unless forced under FLSA

Customer: replied 6 years ago.
Perhaps I was not clear. My offer letter from January 2007 indicated I was assistant to CEO at a hourly rate of $26+ perhour that annualized at 56,000 per year and was eligible for overtime after 40 hours. In March 2008 HR informed me because of my non exempt status I had to start submitting timesheets of all hours worked, including overtime and they requested my estimate of OT since I started working on the job on February 1, 2007. So I prepared a spreadsheet with all those hours that I worked but did not put in for OT as we were never required to put in a time sheet and no record was kept of my hours that I did work OT except for my e mails, and dates on work that were over the 40 hours per week. Early last week I was called into HR and on a conference call with the company's attorney and was told after further review my position was now considered exempt and therefore I was not eligible for OT nor would I be receiving all the OT pay I had earned from February 1, 2007 until last week. I spoke with the CEO and told him I was challenging HR's decision because after my own research I did not believe my position fit all the roles and responsibilities of being an exempt position. Because of my role as sssistant to the CEO I am extra careful about anything I feel is unjustified and challenge decisions to be absolutely certain the company is acting within the paramaters of the DOL Laws, knowing full well the consequences if HR is incorrect. I feel if they do it to me, who kows who else they are doing it to. I'm just the type who fights for what I believe is the right thing to do. To me I am merely his secretary. He tells me what to do. He accepts his own meeting requests. I have to ask him if it's OK to make a meeting requested by others; he tells me when he wants to fly, what airline, times and destinations. I assist the CFO in his travel plans, make copies of docs for him. In any case, I just want you to see the true picture because I have a meeting with HR and the CEO next week and want to be prepared for whatever is thrown at me. I'm certain their attorney will also be conferenced in.

Thank you and whatever your reply is will be accepted thinking you now know the whole picture of my dilemna.

Thank you.
Expert:  Faye Lee replied 6 years ago.

Thanks for the clarification, now it makes sense.Now if you have a written offer letter that stated you were being offerred the position as a non exempt employee and the employer did not admend the offer letter until now, then you have been mis classified for a year.

. However there are three types of employees that may quailfy for exemption as adminstrative employees, the first type acts as the assistant to an executive, proprietor,adm employee who does not him/her self have executive authority. Typical titles of persons in this group are executive assistant to the president, CEO.. this would be your position. The other would be staff employees, and those who perform special assignments. IT appears you never should have been non exempt but exempt. Your job qualifies you for exempt status. Therefore you are not eligible for overtime. Now the question will be will your employer offer you an ajustment because you were not classified correctly.

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