LEGAL QUESTIONS FAQ
To be exempt from overtime pay an employee must…
…Earn more than $455 per week ($23,600 per year) regardless of whether pay is on a salary, fee, or hourly basis.
…Exercise professional judgement in their work (ie. pass the “duties test”). In architecture this would be the difference between acting as a draftsperson and as an architect using specialized knowledge, regardless of job description.
Additionally, managers are always exempt from overtime. There is some confusion over what constitutes management in architecture offices but the Fair Labor Standards Act is clear in its definition. A manager regularly supervises two or more other employees, has management as the primary duty of the position, and also, has genuine input into the job status of other employees (such as hiring, firing, promotions, or assignments).
Unpaid internships must meet six Department of Labor standards to be legal (https://www.dol.gov/whd/regs/compliance/whdfs71.pdf). Architecture internships rarely meet these requirements. A basic rule of thumb is that if your work helps an office make money you legally should be a paid employee.
Stipend pay for internships must still meet all other requirements of the Federal Fair Labor standards act. When divided by the number of hours worked the stipend must meet minimum wage requirements, and if it equates to less than $455 per week employers must also offer overtime pay.
Typically workers who are paid with a 1099 tax form are being classified by their employer as independent contractors and not employees (potentially incorrectly). The Department of Labor has six guidelines to determine whether or not an employment relationship (rather than a contract relationship) exists – refer to Department of Labor fact sheet #13: https://www.dol.gov/whd/regs/compliance/whdfs13.htm
Misclassification of employees as independent contractors is against the law but remains a somewhat common problem in architecture. Misclassification shifts financial risk and the legal responsibilities of an employer onto the worker.