This can come up if an employer makes an employee sign an agreement that their position is exempt from overtime, or if an employer tricks or misleads an employee into testifying in her deposition that her position was exempt. Fed Ex argued precisely this in Boaz v. FedEx, No 12-5319 (6th Circuit, 8/6/13), but the Court was having none of it:

An employee's subjective belief that her position was exempt from FLSA, however, does not mean the position was exempt as a matter of law. Cf. Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 300-01 (1985)(witnesses' testimony that they were volunteers was not dispositive of whether they were actually employees under the FLSA). Were it otherwise, an employer could obtain waivers of FLSA claims merely by having its employees sign a form stating that they are exempt.

The Boaz case was also important, because the Sixth Court court also rejected FedEx's arguments that the employee had waived her claims under the Fair Labor Standards Act (FLSA) and Equal Pay Act, which have been discussed on the Kentucky Employment Law BlogAgreement To Shorten Limitations Period for Wage and Overtime Claims Not Enforceable, Sixth Circuit Rules and Employee Cannot Waive Claims Under the Equal Pay Act, Sixth Circuit Rules.

Lexington, Kentucky overtime lawyer Robert Abell helps individuals and employees recover the overtime they've earned but not been paid; contact him at 859-254-7076.