Exempt from Overtime? Not So Fast. FLSA Requires Overtime be Paid to Working Foremen and Other First-Line Supervisors

Exempt from Overtime? Not So Fast. FLSA Requires Overtime be Paid to Working Foremen and Other First-Line Supervisors

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Introduction

Classifying employees as exempt from overtime can help businesses manage labor costs, but when it comes to working foremen and first-linesupervisors, employers must follow specific guidelines set by the FairLabor Standards Act (FLSA). The FLSA mandates overtime pay for certainemployees, including those in supervisory positions, even if they are paid asalary. Simply paying an employee a salary or giving them supervisory dutiesdoes not automatically exempt them from overtime pay. Misclassifying theseroles can result in back wages, penalties, and legal challenges. Let’s explorewhat the FLSA says about overtime for working foremen and first-linesupervisors.

FLSA Overtime Requirements and Misconceptions

The FLSA generally requires employers to pay employees timeand a half for any hours worked over 40 in a workweek. While manymanagerial positions can be exempt from overtime under the white-collarexemptions (executive, administrative, and professional), these exemptionscome with strict criteria.

One common misconception is that paying a supervisor orforeman a salary makes them automatically exempt from overtime. However, underFLSA guidelines, an employee’s job duties, not their compensationstructure, determine whether they are exempt from overtime. Specifically,employees who spend the majority of their time on non-exempt duties, such asmanual labor, must be paid overtime, regardless of their supervisory role or salarystatus.

FLSA Executive Exemption and Working Foremen

The executive exemption under the FLSA requiresthat the employee’s primary duty be management of the enterprise or of arecognized department. The employee must regularly supervise at least two ormore full-time employees and have the authority to hire or fire other employees(or make significant recommendations on hiring decisions),

However, many working foremen and first-linesupervisors split their time between supervisory duties and manual labor.If the primary responsibility of the foreman is physical work, such as workingalongside their crew on a construction site or performing hands-on tasks in amanufacturing setting, they likely do not meet the FLSA’s exemptionrequirements and must be paid overtime. The FLSA Fact Sheet #17B (https://www.dol.gov/agencies/whd/fact-sheets/17b-overtime-executive)describes all the exemption criteria, and emphasizes that employees whoseprimary duty is not management (by their definition) or who do not regularlysupervise two or more employees are non-exempt and entitled to overtimepay.

What About the Administrative or ProfessionalExemptions?

Here is Fact Sheet 17A defining all of the criteria foreach category of exemption (https://www.dol.gov/agencies/whd/fact-sheets/17a-overtime).According to FLSA, the administrative exemption applies to employeeswhose primary duty is non-manual work related to management or businessoperations and who exercise discretion and independent judgment on significantmatters. While this may apply to certain supervisory roles, it generally doesnot cover working foremen who engage in manual labor. Similarly, the professionalexemption applies to employees whose work is predominantly intellectual andrequires specialized education—criteria that rarely apply to working foremen orfirst-line supervisors.

In most cases, working foremen and first-linesupervisors who spend a substantial amount of time on non-exempt dutieswill not qualify for either the administrative or professional exemptions.

Consequences of Misclassifying Employees

Misclassifying employees as exempt when they should benon-exempt can have serious consequences under the FLSA. These include:

- Back Wages: Employers may owe back wages forunpaid overtime, sometimes for a period of up to three years.

- Penalties: The Department of Labor (DOL) canimpose civil penalties for willful violations, leading to additional fines.

- Legal Costs: Employees who feel they’ve beenwrongly classified may sue for back pay, leading to costly settlements orlitigation.

How to Ensure Compliance with FLSA Guidelines

To avoid the risk of misclassifying working foremenor first-line supervisors, employers should take the following steps:

1. Review Job Duties: Evaluate the actual jobresponsibilities of each supervisory employee. If the foreman spends a majorityof their time on manual labor, they likely do not qualify for an exemption andshould be classified as non-exempt.

2. Do Not Rely on Salary Alone: A salary does notautomatically make an employee exempt from overtime. Review the FLSA Fact Sheet#17B to ensure that the employee meets all the requirements for executive,administrative, or professional exemptions.

3. Monitor Changes in Job Duties: Job roles evolveover time, so it’s important to regularly reassess employees' duties to ensurethey are classified correctly.

4. Consult with Legal Experts: FLSA regulationscan be complex. Consult with legal experts or HR professionals to ensurecompliance and avoid penalties.

Conclusion

The FLSA makes it clear that job duties—not titles orsalary—determine whether an employee is exempt from overtime. For workingforemen and first-line supervisors, this means that even if theyhave leadership roles or receive a salary, they may still be entitled toovertime pay if they spend significant time performing non-exempt tasks. Tostay compliant and avoid costly penalties, employers should regularly evaluatethe duties of their supervisory employees and ensure they meet FLSA standardsfor exemption.

At Dyas HRD, we help businesses stay compliant with FLSAregulations and avoid costly misclassification errors. If you’re unsure aboutthe classification of your working foremen or first-line supervisors, or if youneed guidance on interpreting FLSA exemptions, we’re here to help. Contact DyasHRD today for expert assistance in reviewing your employee classifications andensuring your business complies with all FLSA overtime requirements.

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