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Paying Staff A Salary? You May Need To Pay Overtime, Too

A former staff member is suing retired professional basketball player Chris Bosh for unpaid overtime.

The plaintiff started working as a driver for Bosh and his family in California. At that time, Bosh employed two household managers and two landscapers, in addition to the driver. The driver said when the family lived in California, he rarely worked overtime and was paid for any overtime hours that he did work.

However, when Bosh and his family moved to Austin, Texas, in July 2018, he cut his staff and changed the driver from an hourly wage to a fixed salary. According to the lawsuit, after the move to Austin, Bosh required the driver to perform household duties in addition to driving. His new tasks included unpacking boxes, assembling furniture, taking out the trash, running errands, picking up food from restaurants, and supervising contractors.

The plaintiff said he was working more than 70 hours per week as a result of these additional duties. The former staffer alleges that when he asked Bosh to pay him overtime pay for hours worked over 40 per week, Bosh refused. Bosh allegedly said that he could require the staff member to work as many hours as he wanted because he was paid a salary.

According to the lawsuit, Bosh terminated the plaintiff a few days after he complained about not being paid overtime. The former staffer is suing Bosh for unpaid wages, other damages, and reinstatement. Jerrod Kingery "Driver sues former NBA star Chris Bosh for not paying overtime following move to Austin" (Mar. 28, 2019).

Commentary and Checklist

In order to qualify as exempt from overtime, staff must meet specific requirements set out by the U.S. Department of Labor.

To be exempt, a staff member's job duties, regardless of job title, must meet specific requirements of an executive, administrative, professional or outside sales position. And, the staff must also be paid on a salary basis and make at least $455 per week.

Exemptions do not apply to manual laborers, or "blue collar" workers, who perform work "involving repetitive operations with their hands, physical skill and energy." Non-exempt staff include: carpenters, electricians, mechanics, plumbers, craftsmen, operating engineers, construction workers, and laborers. Family employers must pay manual laborers for overtime worked, no matter their salary or hourly wage rate.

In addition, family employers must monitor federal, state, and local wage and hour laws for any changes that affect their practices. Currently, there is a proposed new rule that would increase the income threshold for overtime exempt staff; however, the duties test for a particular position must still be satisfied

Family employers should follow these tips concerning overtime:

  • Revisit and update your wage and overtime policy so that it stays in compliance with the Fair Labor Standards Act and other wage and hour laws.
  • If in doubt, remember that government regulators tend to take the position that staff is eligible for overtime.
  • Consider an independent audit of your staff classifications. It is recommended that you select an employment attorney as the auditor.
  • Closely examine the salary and job duties of the staff person to determine his or her status under overtime laws. Do not rely solely on job descriptions.
  • Provide training to your managers and supervisors so they are aware of which staff are eligible for overtime and what those staff are entitled to under the law.
  • When in doubt, seek the advice of counsel when making wage classifications for your staff.
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