Surprise! Florida Employee Overtime May Apply to Salary or Commission Only

One of my business clients wanted to address Florida employee overtime issues that were becoming more common. His work force streamlined from the economic downturn was now being used to cover a recent increase in business. The plan would be to promote certain key employees as Senior Managers and pay them salary. While salaried employees might be exempt from overtime, relying only on method of pay and job title may come back to bite you.

The Fair Labor Standards Act (“FLSA”) is a federal law that requires employers to pay hourly (“non-exempt”) employees overtime for working more than 40 hours in one week. Overtime must be at least 1.5 times the employee’s regular rate of pay.

Florida Employee Overtime – Exempt Employees

In order to be exempt from Florida employee overtime, your employee must be paid at least $455 per week and their duties must fall within one of the categories defined by the FLSA as exempt.

  • Executive Employees – primary duty is managing a department, at least two employees, and must have authority to hire and fire
  • Administrative Employees – primary duty is office or non-manual work directly related to management and business operations with the exercise of discretion and independent judgment
  • Professional Employees – primary duty must be the performance of work requiring advanced knowledge, predominantly intellectual in character, and requiring consistent exercise of independent judgment
  • Computer Employees – a computer systems analyst, computer programmer, software engineer or similarly skilled employee with requisite duties spelled out by the FLSA
  • Outside Sales Employees – primary duty must be making sales, obtaining orders, or winning contracts primarily outside the office

So to determine if Florida employee overtime applies or your employee is exempt, look at actual job duties, not title.


Luckily you don’t have to pay your computer or mobile devices overtime. They’re always on because we’re always using them. Which brings up an interesting point. Has technology made it so that we never really stop working?

Working late once upon a time was easy to spot and track. Not any more. Technology has taken a great deal of physical activity out of accessing work, files, books, projects, photos and on and on. The best example of an activity that was limited and acceptable, then with technology unlimited and not acceptable, is Napster. Napster allowed you to download thousands of songs from a shared computer server in no time. When I was young, if the neighborhood kids recorded songs on a cassette tape from a vinyl record and shared them, no one really cared. Enter Napster and the recording industry went to war.

Does an employee who obsessively checks his email constantly open you up to Florida employee overtime? How about employees who log-in from home? Imagine a project manager not wanting to come in 20 minutes early Monday morning to prepare for a team meeting and instead reviews the material from home by logging in Sunday evening – for 3 hours. That can add up.

You may want to look at the access technology gives your employees to their work – and limit it accordingly.