If your employer calls you “exempt” but your actual job duties do not match the legal requirements, you may be owed overtime pay for every hour you worked beyond 40 in a workweek. Misclassification as an exempt employee is a common wage-and-hour violation, and it can cost workers thousands of dollars in unpaid overtime.
At BT Law Group, Miami wage and hour attorneys Jason D. Berkowitz and Anisley Tarragona represent employees throughout Miami and South Florida who have been denied the overtime pay and minimum wage they earned. Our employment lawyers evaluate whether your classification is legally correct and pursue full compensation when it is not.
This guide explains what exempt and non-exempt mean under federal law, how to tell if you have been misclassified, what damages you may be able to recover, and how to take action to protect your rights.
If you believe you’ve been misclassified or denied overtime or minimum wage, call BT Law Group at (305) 507-8506 for a confidential case evaluation. Our attorneys can help you understand your rights and pursue the compensation you are owed.
What Does It Mean to Be Classified as Exempt or Non-Exempt?
The Fair Labor Standards Act (FLSA) requires employers to pay most employees at least the applicable minimum wage for all hours worked and overtime at one and a half times an employee’s regular rate for hours worked beyond 40 in a workweek. Under 29 U.S.C. § 207, this overtime requirement applies to every covered employee unless a specific exemption applies.
Employees who qualify for an exemption are called “exempt,” meaning they are not entitled to overtime pay regardless of how many hours they work. Employees who do not qualify for any exemption are called “non-exempt,” and they are entitled to overtime pay for every hour worked over 40 in a workweek. Florida has its own minimum wage law, but does not have its own overtime law and follows the FLSA for overtime purposes.
The distinction between exempt and non-exempt is not based on job titles or what your employer decides to call you. It depends on what you are actually doing and whether you meet both the FLSA’s salary-basis/salary-level requirements and the duties test.
What Are the Requirements for an Exempt Classification in Florida?
Under 29 U.S.C. § 213(a)(1), the FLSA exempts, among others, employees who work in a “bona fide executive, administrative, or professional capacity.” These are commonly known as the Executive, Administrative, and Professional (EAP) or “white-collar” exemptions. The U.S. Department of Labor (DOL) defines these exemptions through regulations found at 29 C.F.R. Part 541.
To be properly classified as exempt, an employee must meet both a salary test and a duties test. Failing either test means the employee should be classified as non-exempt and is entitled to overtime.
What Is the Salary Test?
The salary test requires that the employee be paid on a salary basis at a rate of not less than $684 per week, which equals $35,568 per year. This threshold has been in effect since January 1, 2020. A salary basis means the employee receives a predetermined, fixed amount each pay period that is not reduced based on the quality or quantity of work performed.
In 2024, the DOL issued a rule that raised the salary threshold to $844/week on July 1, 2024, and would have increased it to $1,128/week on January 1, 2025. On November 15, 2024, the U.S. District Court for the Eastern District of Texas vacated the 2024 rule, and the Department has returned to enforcing the $684/week threshold. As of February 2026, the federal salary threshold remains $684 per week.
If an employee earns less than $684 per week on a salary basis, that employee cannot be classified as exempt for overtime purposes under the EAP exemptions, regardless of job duties. The employee is automatically non-exempt and entitled to overtime.
What Is the Duties Test?
Even if an employee meets the salary threshold, the employee must also perform specific types of work to qualify as exempt. The three most common exemptions each have their own duties test. For example:
| Exemption | Primary Duty | Additional Requirements |
|---|---|---|
| Executive (29 C.F.R. § 541.100) | Managing the enterprise or a recognized department | Customarily and regularly directs at least two full-time employees; has authority to hire, fire, or make recommendations that carry weight |
| Administrative (29 C.F.R. § 541.200) | Office or non-manual work directly related to management or general business operations | Exercises discretion and independent judgment on matters of significance |
| Professional (29 C.F.R. § 541.300) | Work requiring advanced knowledge in a field of science or learning | Knowledge customarily acquired through prolonged, specialized education |
The FLSA also provides exemptions for outside sales employees under 29 C.F.R. § 541.500 and certain computer employees under 29 C.F.R. § 541.400. Computer employees may qualify for exemption if they earn at least $27.63 per hour.
Key Takeaway: An employee must pass both a salary test ($684 per week minimum) and a duties test to be properly classified as exempt under the “white collar” exemptions. Job titles alone do not determine exempt status. The employee’s actual day-to-day work is what matters.
Wage & Hour Attorneys in Miami – BT Law Group, PLLC
Jason D. Berkowitz, Esq.
Jason D. Berkowitz is a founding partner of BT Law Group, PLLC and a Miami-based labor and employment attorney. Before launching BT Law Group, Jason was a partner in the Miami office of a national labor and employment firm representing management exclusively, including many of America’s Fortune 100 companies. He earned his J.D., cum laude, from the University of Miami School of Law in 2008 and his B.A. from Tufts University in 2003. Jason litigates and tries cases in federal and state courts and before administrative agencies, including the American Arbitration Association.
His experience on the management side of employment law gives him unique insight into how employers build and defend wage and hour cases. Jason is admitted to practice in all three federal districts in Florida and the U.S. Court of Appeals for the Eleventh Circuit.
Anisley Tarragona, Esq.
Anisley Tarragona is a founding partner of BT Law Group, PLLC and a Miami-based litigator focused on resolving employment disputes and protecting workers’ rights. Anisley built her experience prior to launching BT Law Group as a partner in the Miami office of a national labor and employment law firm representing management exclusively. That experience gives her unique insight into how employers and their attorneys approach and value workplace disputes. She earned her J.D. from the University of Miami School of Law in 2007 and her B.S.B.A. from the University of Central Florida in 2004.
Born and raised in Cuba, Anisley is fluent in Spanish and frequently advises Spanish-speaking clients throughout Miami and South Florida. She is known for her assertive approach and attention to detail in complex employment cases, achieving meaningful recoveries and accountability for her clients.
How Do Employers Misclassify Employees as Exempt?
Misclassification happens when an employer labels a worker as exempt even though the worker does not meet the legal requirements for an exemption. This sometimes happens deliberately to avoid paying overtime, or it can result from a genuine misunderstanding of the law. Either way, the employee loses money, and the employer may face significant liability.
Common Misclassification Scenarios
Some of the most frequently misclassified roles involve employees who carry managerial titles but spend most of their time doing the same hands-on work as non-exempt employees. A restaurant worker with the title “assistant manager” who spends the majority of their shift cooking food, serving customers, and cleaning rather than managing other employees may not qualify for the executive exemption.
Similarly, an office worker with the title “administrative coordinator” who primarily handles data entry, answers phones, and processes routine paperwork may not meet the administrative exemption’s requirement of exercising discretion and independent judgment on significant matters. The title suggests administrative work, but the actual duties do not meet the legal standard.
Why Job Titles Do Not Determine Exempt Status
The DOL has consistently emphasized that job titles have no bearing on whether an employee is exempt. Under 29 C.F.R. § 541.2, an employee’s actual job duties and salary are what determine exempt or non-exempt status. An employer cannot avoid overtime obligations simply by calling a worker a “manager,” “director,” or “supervisor.”
This is a critical distinction for workers in Miami’s service, hospitality, financial, and retail industries, where employers sometimes assign impressive titles to employees who perform largely non-exempt work. If your day-to-day duties consist primarily of non-managerial tasks, your classification may be wrong regardless of what your business card says.
Key Takeaway: Misclassification often involves employees who hold managerial titles but spend most of their time on hands-on, manual, non-exempt work. Job titles do not determine exempt status under the FLSA. Actual duties control the analysis.
What Damages Can You Recover for Misclassification in Florida?
If you were misclassified as exempt and denied overtime pay, the FLSA provides several forms of relief. Under 29 U.S.C. § 216(b), an employer who violates the overtime provisions is liable for the following:
- Back wages: The full amount of unpaid overtime compensation you should have received for every hour worked over 40 in each workweek during the applicable period
- Liquidated damages: An additional amount equal to your unpaid overtime, effectively doubling the total recovery
- Attorney’s fees and costs: The employer may be required to pay your attorney’s fees and litigation costs if you prevail
- Collective action relief: Other similarly situated employees can opt in to the lawsuit and recover their own unpaid overtime
How Far Back Can You Recover Unpaid Overtime?
The statute of limitations for FLSA claims is two years from the date the violation occurred. If the employer’s violation was “willful,” meaning the employer knew or showed reckless disregard for whether its conduct violated the FLSA, the statute of limitations extends to three years. Because each paycheck is a separate violation, the recovery period rolls forward with time.
Can Liquidated Damages Be Reduced?
Liquidated damages are generally presumed in a successful FLSA case. However, under 29 U.S.C. § 260, a court has discretion to reduce or eliminate liquidated damages if the employer can prove two things: that the violation was made in good faith and that the employer had reasonable grounds for believing its conduct was lawful. Courts typically require the employer to show it took affirmative steps to comply, such as consulting experienced wage and hour counsel. Simply assuming that a classification is correct does not satisfy this standard.
Key Takeaway: Misclassified employees can recover unpaid overtime going back two years (or three years for willful violations), plus an equal amount in liquidated damages, plus attorney’s fees and costs. This can potentially double the total recovery.
How Can You Tell If You Have Been Misclassified?
Determining whether you have been misclassified requires comparing your actual job duties and compensation to the legal requirements for the exemption your employer is claiming. Several warning signs may indicate that your classification is incorrect.
Consider your daily work responsibilities honestly. If you spend most of your time performing the same tasks as employees who are paid hourly and receive overtime, your exempt classification may be wrong. The “primary duty” test under 29 C.F.R. § 541.700 looks at the principal, main, or most important duty you perform, considering factors such as the amount of time spent on exempt versus non-exempt work, your relative freedom from supervision, and the relationship between your salary and the wages paid to non-exempt workers doing similar tasks.
You may also want to examine your pay structure. If your employer deducts pay from your salary for partial-day absences or reduces your pay based on the quality or quantity of your work, you may not actually be paid on a true “salary basis” as the FLSA requires. Improper salary deductions can destroy the exemption and make you eligible for overtime. These warning signs are worth discussing with an employment attorney who can evaluate your specific situation.
Key Takeaway: If you hold a managerial title but spend most of your time on hands-on, clerical, non-managerial work, or if your employer makes deductions from your salary for partial-day absences, your exempt classification may be incorrect.
What Steps Should You Take If You Think You Are Misclassified?
If you believe your employer has incorrectly classified you as exempt, there are several steps you can take to protect your rights.
First, start keeping your own records of the hours you work each week, including start times, end times, and any work performed outside regular hours. This can include responding to emails or attending meetings or events. Because exempt employees typically do not have their hours tracked by the employer, your own records may be the best evidence of how much overtime you actually worked.
Second, review your job duties carefully. Write down everything you do during a typical workweek and estimate the percentage of time spent on each task. This information can help an attorney assess whether your duties meet the requirements of the exemption your employer is applying.
Third, consult with an employment attorney before confronting your employer or filing a complaint. An attorney can evaluate whether you have a viable claim, estimate the potential value of your case, and advise on the best course of action. Under the FLSA, it is illegal for an employer to retaliate against you for asserting your rights, but having legal counsel helps ensure your claim is handled strategically.
You also have the option of filing a complaint with the U.S. Department of Labor Wage and Hour Division (WHD) Miami District Office, located at 11400 N. Kendall Dr. (a.k.a. 11400 SW 88th St.), Suite 201, Miami, FL 33176. The WHD can investigate your employer and seek back wages on your behalf. However, filing a private lawsuit can provide additional remedies, for example, liquidated damages and attorney’s fees, that may not be available through a WHD administrative investigation and are instead reserved for court proceedings.
Key Takeaway: Keep records of your hours worked, document your actual job duties, and consult an employment attorney before taking action. You can also file a complaint with the DOL Wage and Hour Division Miami District Office, though a private lawsuit may provide greater recovery.
Can You File a Lawsuit on Behalf of Other Misclassified Workers?
Yes. The FLSA allows employees to bring collective actions on behalf of themselves and other workers who are “similarly situated.” Under 29 U.S.C. § 216(b), other employees who have been misclassified in the same way can opt in to the lawsuit by filing written consent with the court.
Collective actions are common in misclassification cases because employers often apply the same incorrect classification to an entire group of employees in a particular role. For example, if a company classifies all of its assistant managers as exempt even though their duties do not meet the executive exemption requirements, every misclassified assistant manager may be entitled to recover unpaid overtime.
This differs from a traditional class action. In an FLSA collective action, each employee must affirmatively choose to join the case by filing written consent. The court may also require the employer to provide contact information for potentially affected employees so they can be notified of their right to opt in. Collective actions can significantly increase the total recovery and the pressure on the employer to resolve the case.
What Industries in Miami See the Most Misclassification?
Employee misclassification affects workers across many industries, but certain sectors in the Miami area tend to see higher rates of overtime violations. Florida’s service-heavy economy, combined with the high cost of living in Miami-Dade County, means that unpaid overtime has a significant financial impact on affected workers.
Hospitality and restaurant workers in neighborhoods like Brickell, Wynwood, and Miami Beach frequently encounter misclassification, particularly in assistant manager and shift supervisor roles. Retail employees throughout Coral Gables and the greater Miami area may also be classified as exempt based on title alone, without meeting the duties test. Construction, healthcare, and technology companies operating in South Florida have also faced FLSA claims related to improper exempt classifications.
Most Miami-area FLSA lawsuits are filed in the U.S. District Court for the Southern District of Florida. The Eleventh Circuit Court of Appeals hears appeals from FLSA cases originating in the Southern District of Florida.
Key Takeaway: Hospitality, retail, construction, healthcare, and technology industries in Miami-Dade County commonly see misclassification violations. FLSA cases are filed in the U.S. District Court for the Southern District of Florida in downtown Miami, Fort Lauderdale, and West Palm Beach.
Determining Your Next Steps with an Experienced Wage and Hour Lawyer
Being denied overtime pay you earned can add up to thousands of dollars over months and years of work. If your employer classified you as exempt but your actual job duties involve primarily hands-on, clerical, non-managerial work, you may have a strong claim for unpaid overtime, liquidated damages, and attorney’s fees.
Miami employment attorneys Jason D. Berkowitz and Anisley Tarragona have over 30 years of combined experience handling wage and hour disputes in Florida. At BT Law Group, our unpaid wage lawyers evaluate your job duties, review your pay records, and determine whether your employer has violated the FLSA. We pursue claims in the U.S. District Court for the Southern District of Florida and in the Florida Circuit Court, and handle every step of the process, from investigation through trial.
Call BT Law Group at (305) 507-8506 for a confidential case evaluation. We serve employees throughout Miami, Brickell, Coral Gables, Miami Beach, and all of Miami-Dade County. If you have been misclassified and denied overtime, we can help you understand your rights and pursue the compensation you are owed.
