Miami Wage and Hour Attorney Jason D. Berkowitz Explains How Employee Misclassification Affects Overtime Pay in Florida

MIAMI, FL - Employees who carry exempt titles but spend their workdays performing hands-on, non-managerial tasks may be owed significant unpaid overtime under federal law, and the financial impact of misclassification can amount to thousands of dollars over months and years of work. Miami wage and hour attorney Jason D. Berkowitz of BT Law Group, PLLC (https://btattorneys.com/what-is-employee-misclassification-in-miami-florida/) is explaining how the Fair Labor Standards Act determines exempt status, what happens when an employer's classification does not match the employee's actual duties, and what remedies are available to affected workers.

According to Miami wage and hour attorney Jason D. Berkowitz, the FLSA requires employers to pay most employees overtime at one and a half times their regular rate for hours worked beyond 40 in a workweek under 29 U.S.C. 207. Employees classified as exempt are not entitled to overtime, but that classification must satisfy both a salary test and a duties test under 29 U.S.C. 213(a)(1). The distinction between exempt and non-exempt is not based on job titles or what an employer decides to call the position. "The employee's actual day-to-day work is what controls the analysis," explains Berkowitz. "An impressive title does not eliminate the right to overtime pay."

Miami wage and hour attorney Jason D. Berkowitz notes that the federal salary threshold for the executive, administrative, and professional exemptions remains $684 per week as of 2026, following the November 2024 vacatur of a Department of Labor rule that would have raised the threshold. Employees earning below this amount cannot be classified as exempt regardless of their duties. Even those meeting the salary requirement must also satisfy specific duties tests outlined in 29 C.F.R. Part 541, such as managing a recognized department and customarily directing at least two full-time employees for the executive exemption, or exercising discretion and independent judgment on matters of significance for the administrative exemption.

Attorney Berkowitz points out that misclassification is particularly common in Miami's hospitality, retail, construction, healthcare, and technology industries, where employers sometimes assign managerial titles to employees who perform largely non-exempt work. A restaurant worker with the title of assistant manager who spends the majority of their shift cooking, serving customers, and cleaning rather than supervising staff may not qualify for the executive exemption. Similarly, an office worker titled administrative coordinator who primarily handles data entry and routine paperwork may not meet the administrative exemption's requirement. "The primary duty test under 29 C.F.R. 541.700 looks at the principal, main, or most important duty the employee performs," he adds. "If that duty is hands-on work rather than management, the classification may be wrong."

Improper salary deductions can also undermine an exempt classification. If an employer deducts pay from a salaried employee's check for partial-day absences or reduces compensation based on the quality or quantity of work, the employee may not actually be paid on a true salary basis as the FLSA requires. This can destroy the exemption and make the employee eligible for overtime for the entire period the deductions occurred. The team at BT Law Group reviews pay records carefully when evaluating potential misclassification claims.

Under 29 U.S.C. 216(b), misclassified employees may recover unpaid overtime going back two years from the date of the violation, or three years if the employer's conduct was willful. Liquidated damages equal to the amount of unpaid overtime are generally presumed in a successful FLSA case, effectively doubling the total recovery. Attorney's fees and litigation costs are also recoverable. Berkowitz and co-counsel Anisley Tarragona handle FLSA claims filed in the U.S. District Court for the Southern District of Florida, including collective actions that allow similarly situated employees to opt in to a single lawsuit.

Employees who believe they have been misclassified are advised to keep personal records of hours worked each week, document their actual job duties, and consult with an employment attorney before confronting the employer or filing a complaint. A complaint may also be filed with the U.S. Department of Labor Wage and Hour Division Miami District Office, though a private lawsuit may provide additional remedies including liquidated damages that are not available through administrative investigations alone.

For those who suspect their exempt classification does not match their actual work responsibilities, consulting with a wage and hour attorney can help determine whether a viable claim exists and estimate the potential value of unpaid overtime.

About BT Law Group, PLLC:

BT Law Group, PLLC is a Miami-based law firm dedicated to employment law, including wage and hour disputes, overtime claims, and employee misclassification cases. Led by attorneys Jason D. Berkowitz and Anisley Tarragona, the firm serves employees throughout Miami-Dade County and South Florida. For consultations, call (305) 507-8506.

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