Hello again and thank you for your response. To clarify the law on this issue, whether an employer "approves" overtime or not for their non-exempt employees, they must nonetheless pay it to those who actually worked that time. In other words, an employer doesn't have the legal option to say to a non-exempt employee that they will not get paid for their overtime simply because it wasn't approved. Under both the Federal Fair Labor Standards Act
and all state laws (you don't state what State you work in but all states must, at the very least follow the FLSA
), a non-exempt employee that works over 40 hours in a workweek, must be paid time and a half. There are no exceptions for when an employer has not pre-approved the time. Therefore, the issue is actually fairly simple. If they refuse to pay you for the overtime you have worked, you have the right to file a wage
claim with the state DOL. As for forcing them to make you exempt, the law does not mandate that any employee be identified as exempt. In fact, it works the other way around. Only certain employees can be identified as exempt. The reason is because the laws favor non-exempt employees. Thus it only goes one way. An employer cannot make someone exempt who really should be non-exempt. As indicated in my initial response, there really are less rights to decent pay for exempt since employers can work them 24/7 without paying them overtime. So, from a legal standpoint, you cannot force your employer to make you exempt. And, they might not even be able to even if they wanted to because of the strict rules about who can be exempt. Assuming though that your position would qualify as exempt, since you can't force the employer to do that, it then becomes an administrative issue that you must work through your senior management and HR to try to resolve. Absent a written term contract or bargaining agreement, an employer always has the right to set and change the terms and conditions of employment, including duties, title, wages, benefits, etc. But again, the take away here is that if you are working overtime, you employer must pay you and if they don't you have a valid wage claim. That said, an employer can discipline employees who work overtime without getting pre-approval if that is an employer requirement. Please let me know if you need any clarification. I would be glad to assist you further if I can.