I have recently been re-classified to non-exempt and am negotiating overtime back wages. I believe the misclassification was willful by the fact that the employer first supported the exemption by saying it was because I was "salary and a manager," then claiming "professional exemption" and then changed its stance to "computer related exemption" - all within a 5 month period. Also, a memo from corporate human resources director was presented to "change" job titles to avoid paying overtime clearly shows the company's inclination to not pay overtime despite FLSA regulations. I know that I should in the least be paid two years of back wages. Am I also eligible for liquidated damages on these two years? Should I also request the additiional third year for wilfull violations?

It's only a possibility if you file a civil suit and not a wage claim with the TWC (which has to be done within 180 days of the violation) or the federal DOL (which could, in any case, get you your overtime only).

It may or may not have been "willful"; maybe the employer was just ignorant.

See an employment law attorney.

A. I'm not an attorney.

B. From what I just read, liquidated damages only apply when a contract is created and liquidated damages are specified in the contract if there is a breech in order to compensated the injured party for his or her actual or likely economic losses. Liquidated damages are not allowed or used for the purpose of punishing the wrongdoer.

C. Liquidated damages don't appear to apply to your situation.

D. See an attorney.

In 2004 after the DOL released its regulations governing overtime eligibility for "white collar" employees and certain computer employees under the Fair Labor Standards Act, the Department of Labor estimated that the new regulations would cause approximately 7 million additional employees to be eligible for overtime. It became the employer's "due diligence" requirement to ensure that all positions meet the new exemption criteria. Therefore an employers failure to satisfy its due diligence requirements, constitutes evidence of a "willful" violation of the FLSA in the event the Department of Labor or a court determines that the employer has mis-classified a non-exempt position as exempt. I believe my employer knew of the regulations and yet continued to disregard those regulations, proof in the memo. That is wilfull. Ignorance of the law is no excuse. Really, all jobs should first be classified as "non-exempt," and the FLSA regulations used to determine the exemption, not the other way around. I'll get a lawyer.

Really, all jobs should first be classified as "non-exempt," and the FLSA regulations used to determine the exemption, not the other way around.

They are. The fact that you feel your employer didn't do so does not mean they shouldn't have.