Employees should only be denied overtime if they are a salaried employee making more than $455 per week and they meet the following three tests of the executive exemption:
- The employee’s main duty must be managing the enterprise or a department of it.
- The employee must regularly direct the work of two or more full-time employees.
- The employee has the power to hire, fire or promote, or their recommendations as to who should be hired, fired or promoted are given particular weight.
In overtime law, factors that determine whether a worker’s suggestions are given “particular weight” include whether the employee’s job descriptions entails making such recommendations; how often these recommendations are made or requested; and how often the employee’s suggestions are relied upon.
As a general rule, an executive’s recommendations must relate to the workers they usually direct. These recommendations do not include a casual comment regarding the hiring, firing or promoting of an employee. An employee’s comments may still have particular weight even if another higher level employee’s suggestions have more influence and the employee does not have the power to make the final decision.