Working long hours is not fun for anyone and that is especially true if you are only earning straight time for the long hours you are spending at work. Quite often I am approached by someone asking me “when am I supposed to get overtime pay” or “when does my boss have to pay me overtime”?

In Nevada, this requires a two tier review. At base, there is the federal Fair Labor Standards Act (FLSA) that sets an absolute floor on who is entitled to overtime pay and when they are entitled to overtime pay. In some states, this is the only overtime protection provided to employees. But, in Nevada, we have additional protections that are more favorable to employees than the floor provided by FLSA. Before reaching the federal protections for overtime and then the Nevada protections, we must first address the fact that some employees are completely exempt from earning overtime pay.

Which Employees are Exempt for Overtime Purposes?

Section 13(a)(1) of the FLSA exempts employees employed as bona fide executive, administrative, and professional employees from overtime pay. There are also exemptions that apply to certain computer employees. These issues for computer employees do not come up often are usually pretty easy to identify, so I will not address them here.

Who is an Executive Employee Exempt from Overtime Pay?

To be an exempt executive employee, the employee must:

1. Be compensated on a salary basis at a rate of not less than $455 per week;
2. Have primary job duties of managing a business or department or subdivision of a business;
3. Consistently direct the work of two or more full-time employees; and
4. Have the personal authority to hire or fire employees of the business, the ability to suggest and recommend the hiring, firing, or promotion of other employees, or their opinion on such matters is given weight.

Who is an Administrative Employee Exempt from Overtime Pay?

To be an administrative exempt employee, the employee must:

1. Be compensated on a salary or fee basis at a rate not less than $455 per week;
2. Have primary job duties of performing either office or non-manual work that is also directly related to the management or general business operations of an employer or an employer’s customers; and
3. Have a primary duty that includes using discretion and independent judgment in matters of significance.

Who is a Professional Employee Exempt from Overtime Pay?

There are two categories of exempt professional employees that must be considered. The first is the learned professional and the second is the creative professional. Turns out being learned and creative do not go together. As a lawyer, I resemble this fact. Anyway, to qualify for the creative professional exemption, an employee must:

1. Be compensated on a salary or fee basis at not less than $455 per week; and
2. Have primary duties that require invention, imagination, originality or talent in a field of artistic or creative endeavor (see, I told you lawyers do not fit in this category).

To be an exempt learned professional employee, the employee must:

1. Earn a salary or fee at a rate of not less than $455 per week;
2. Hold primary duties, which include the performance of work requiring advanced knowledge;
3. Hold advanced knowledge in a field of science or learning; and
4. Their advanced knowledge must be obtained through specialized intellectual instruction.

Any Other Exemptions?

Glad you asked because the answer is yes. Highly compensated employees who perform office or non-manual work and are paid total yearly compensation of $100,000 or more are exempt from receiving overtime pay.

Note the corollary to this is that if a person earns over $100,000 on an annual basis and is a blue collar worker performing manual labor, they are entitled to overtime pay despite their high earnings. An additional point on this is paramedics, EMTs, firefighters and other first responders will earn overtime pay regardless of their total annual compensation.

What is this salary or fee basis you mentioned?

Good question! An employee earning less than $455 salary per week will be entitled to overtime pay. So, even if they earn a salary, it does not necessarily mean they are not entitled to overtime pay. This is the most common misconception regarding overtime wages. Simply because an employee is paid a salary does not mean they are exempt from overtime. This is the number one mistake that I have seen employers make in the payment or non-payment of overtime wages.

In addition, under FLSA, salary means the employee regularly receives a predetermined amount of pay each pay period on a weekly, or less frequent, basis. The employee’s amount of pay also cannot be reduced based on their quantity or quality of work. If an employer makes deductions from an employee’s salary for quality or quantity of work, the employer loses the benefit of the exemption and must pay overtime. A lot of restaurant and retail businesses have learned this exception the hard way.

The fee basis comes into play for some professional employees who are paid on a flat fee for a specific task. To determine if the fee paid complies with the required minimum salary level, the time worked on the task must be considered to determine whether the payment was at a rate that would be equal to at least $455 per week if the professional employee worked forty hours.

What About Nevada Specific Laws on Overtime?

Like some other states, Nevada has its own laws as it concerns overtime entitlement and pay. If an employee is paid less than one and one half times the state minimum wage per hour, their employer must pay them overtime wages for all time worked over 8 hours in any 24-hour period and also for all time worked over 40 hours in the employee’s work week. NRS 608.018 provides this requirement. This state protection for overtime is greater than the protection under the FLSA because FLSA only requires overtime after a person works 40 hours in a work week. Not many other states have similar protections.

The overtime pay for all hours over eight hours in a single day also has an exception for employees scheduled on a 4 day and 10 hour per day schedule that agree to such a schedule. But, if an employer deviates from the recognized 4 days and 10 hours per day schedule, the employer could be responsible for the payment of overtime to the employee. In fact, the Nevada Labor Commissioner has an advisory opinion on precisely this topic. See AO 2013-04.

Nevada law also exempts certain professional employees from the payment of overtime wages. The list of professional employees is published in a list by the Nevada Labor Commissioner on its website. 

What if an employer has not paid overtime to an employee entitled to overtime?

An employee who is entitled to overtime wages based on the FLSA can do one of two things to recover the unpaid overtime. She can (1) make a complaint to the U.S. Department of Labor, Wage and Hour Division or (2) she can file a lawsuit under the FLSA in a U.S. District Court. The employee could also choose to do both of those.

If an employee has not been paid the proper overtime wages under Nevada state law, she also has two options. She can (1) make a complaint to the Nevada Labor Commissioner or (2) file a lawsuit against her employer in a Nevada state court of competent jurisdiction. The employee can do both of these if she so chooses. The basis for a court complaint is under NRS chapter 608.

Under both federal law and state law, an employee who successfully brings a lawsuit for unpaid overtime wages can recover her reasonable attorney’s fees and costs.

Disclaimer

This post is simply legal information and is not legal advice. The only way to obtain legal advice on your specific personal factual scenario is by retaining an attorney licensed to practice in the state of your legal dispute. This article does not create and is not intended to create an attorney-client relationship between the author and any reader of the article.