In March of 2012 the United States District Court for the Western District of Kentucky heard a case involving the FLSA and unpaid overtime wages. (See Fox v. Lovas, 2012 WL 692131 (W.D. Ky.)). The original case was filed in state court and the defendants removed it to federal court. The suit was originally filed on October 27, 2010. Under the FLSA and the Kentucky Wages and Hours Act (“KWHA”) an employee must be paid at least one and one-half times the regular rate at which he is employed if he worked more than 40 hours in a workweek. Id. Though under both the FLSA and KWHA certain categories of employees are excluded such as a bona fide executive, administrative or professional capacity employee. Id.
The difference between the FLSA and the KWHA are subtle but significant. It has to do with the burden of proof under each. Under the FLSA an employee is any individual employed by an employer though there are exceptions. The exemptions under the FLSA are to be narrowly construed against the employers seeking to assert it. (cites omitted). A Kentucky FLSA overtime lawyer would be able to explain to you these differences.
The KWHA unlike the FLSA contains no exemption for bona fide administrative employees. Instead, such individuals are not entitled to overtime wages because they do not fall within the Act’s definition of employee. Id. This is the major difference between the two. So, if you have an unpaid overtime wages issue in Kentucky and sue under the KWHA, you as the employee has the burden to prove that you are an employee as compared to if you sued under the FLSA where you would be presumed to be an employee and then it would be the employer’s burden to prove that you were exempt.
Under the FLSA an employee is considered in a bona fide administrative capacity if the employee is paid at least $455 per week, if the employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business of the employer or the employer’s customers and third the employee’s primary duty must include the exercise of discretion and independent judgment with respect to matters of significance. Id.
Based on the factors listed, the Plaintiffs in this Kentucky FLSA overtime case were considered administrative assistants and thus not entitled to overtime. They performed tasks that allowed them to exercise discretion and independent judgment.
If you have been the subject of a Kentucky FLSA overtime case, please call and speak to a Kentucky FLSA overtime lawyer at the Law Offices of Andrew Alitowski, P.A. at 888-ASK-ANDREW (888-275-2637) or contact us. We are available 24 hours a day, 7 days a week.
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